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First online condo tribunal decisions offer guidance to boards, owners

As the first few cases trickle out of the new Condominium Authority Tribunal (CAT), Toronto condominium lawyer John De Vellis says the decisions released so far largely follow existing case law.

“Many of the cases are following the same jurisprudence,” says De Vellis, a partner with Shibley Righton LLP. “For the most part, none of the tests has changed. It’s just that you have a specialized tribunal handling matters.”

The tribunal was set up as an online-only body, devoted exclusively to condo-related disputes in Ontario. The hope, says De Vellis, is that specialized adjudicators ruling on written submission will allow cases to settle more quickly and inexpensively than going through the courts.

So far, CAT’s jurisdiction extends only as far as record disputes covered by s. 55 of the Condominium Act, but will likely expand as time goes on, he tells AdvocateDaily.com.

The stepped process begins with a $25 access fee that allows the parties to try to settle the issues themselves. The next stage, which costs $50, escalates the matter to mediation before a final adjudication stage by a tribunal member, which costs $125.

Below, De Vellis picks out some of the highlights of the cases decided so far:

Legal invoices case

This decision involved an owner’s request for unredacted copies of the invoices from the condo corporation’s lawyer.

De Vellis says the decision highlights a “kind of disconnect between the disclosure exemptions in the Condominium Act and the common law concept of solicitor-client privilege.

"The Act states that any records that are relating to 'actual or contemplated litigation' are exempt from the general disclosure right," he explains. "But solicitor-client privilege is much broader than that and applies to any advice provided by a lawyer to his or her client.” 

De Vellis says the privilege is jealously guarded under the common law, which may conflict with the narrower rules laid out in the Act.

“The tribunal used a broad definition of actual or pending litigation and denied the owner’s request on that basis, but the general question of whether solicitor-client privilege alone is sufficient to deny a disclosure request remains unanswered," he says.

"This issue will likely be litigated further at some point,” De Vellis adds.

Excessive questioning

This case involved a unit owner’s request for a number of records related to the condo’s reserve fund and a series of historic repairs. Unsatisfied by the level of reporting received from the condo’s general manager, the unit owner followed up with a series of questions to management and ultimately brought an application to the tribunal for non-disclosure.

However, the adjudicator found the condo had turned over all the records it was required to and declined to make an award of costs.    

“You often get cases where owners submit a list of questions to property managers after receiving records,” De Vellis says. “Management is typically happy to answer them as part of their job, but this decision is in line with my feeling that it should be a matter of customer service, rather than a matter of legislative requirement.

“If managers were required to answer all the questions that come from owners, they would be drowning in correspondence and have no time to get anything else done,” he adds.

Unit owner list

Another case of note concerned a unit owner whose request for a list of the condo’s owners and mortgagees was initially granted for a fee of $336, calculated at a rate of $63 per hour for the labour, plus $0.26 per photocopy.

An adjudicator found the charged fee was unreasonable, cutting the hourly rate in half to $31.50 and noting that the photocopy price exceeded the $0.20 limit set in regulations under the Condominium Act. The unit owner was also granted costs of $125, plus a penalty of $1,000 for the condo corporation’s lack of “early and active participation.”

“This one was interesting because it used to be that requests for lists of unit owners would only be granted if the owner required it for an owners' meeting,” De Vellis says. “Under the new legislation, that information has been classified as a core record that must be produced.”

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