The “new” Condo Tribunal started hearing and adjudicating condo-related disputes on November 1, 2017. A year later, what have we learned? What documents are being requested? Are corporations complying with their obligations? Can corporations charge to access records? In this post we take a look back at the CAT’s first year of operation.
The Condo Authority Tribunal is Canada’s first fully online tribunal, which was set up under the Condo Authority of Ontario to hear and adjudicate condo-related disputes. Until now, its jurisdiction has been limited to records-related disputes.
What Records are being requested
Condo corporations are required to maintain various and numerous records. These are mainly listed at section 55 of the Condo Act and at section 13.1 of the General Regulation adopted under the Act. Owners are, generally speaking, entitled to access the corporation’s records, subject to some exceptions. Section 55 sets out the process by which records can be requested by owners. This new process is aimed at creating an easier path for unit owners to access corporate records.
Still, in some cases, owners and corporations can’t agree on what records should be disclosed. So far, the CAT had to ruled on the following records requests. In brackets, I indicate whether the access was granted to the requested records:
- Financial records related to shared facilities [yes];
- Audited Statements, bank drafts, bank ledgers and copies of management contracts [yes];
- Board minutes and expenditure records [yes];
- Unaltered proxies [no];
- Incident report made to the Superintendent [no];
- 20-year old board minutes [no];
- Copies of the lawyer’s invoices [yes but redacted].
Lessons learned so far
The CAT has provide some clear guidance on :
- whether corporations can charge fees for the labour and cost of disclosing records (yes but they must be reasonable and in line with the applicable regulation);
- whether a corporation can refuse access to records related to actual or contemplated litigation (yes);
- when the tribunal will order the corporation to pay a penalty for having refused to grant access or copies of records (once so far);
- when the tribunal will order the defeated party to pay the legal fees of the victorious party (only in exceptional circumstances – ie, pretty much never).
While we have relatively few cases so far, the following statistics may be of interest.
Where do cases originate from?
So far, the CAT has issued 9 decisions. Of these cases :
- 77% originated from the GTA
- 11% (or one case) from Ottawa
- 11% (or one case) from Kingston
Are the parties represented by lawyers?
While the CAT rules allow parties to be represented by lawyers, most cases so far don’t involve lawyers. Specifically:
- 88% of the time, owners are self represented
- 55% of the time, corporations are represented by agents (mostly condo managers)
- 44% of the time, corporations are represented by lawyers.
Who has been successful?
An interesting stats has to do with the success rate. This may give an indication on the usefulness of the CAT. So far:
- 22% of the time, the CAT agreed with the owner and ordered the corporation to disclose what was being requested;
- 66% of the time, the corporation had disclosed or was disclosing the required records. That is good news! Corporation are mostly complying with their obligations;
- Success was divided in the other case.
What hourly rate is reasonable to prepare records?
In at least 2 cases, the CAT discussed the reasonableness of the fees being charged to owners to prepare or disclose records.
On the photocopying cost, the CAT reminded a corporation that the regulation already imposed a cap of 20 cents per page.
The question is a bite more complicated on the question of labour cost. The CAT repeatedly reduced the hourly rate sought by corporations for the work required to review, redact or prepare the records being disclosed. After all, it was found to be fairly clerical work. How much can one charge to locate documents, remove them from binders, unstaple them and photocopy them?
Unless a legal mind is required to review and redact documents (as was the case in one instance), the CAT has ruled that $31/hour was a reasonable hourly rate (reduced from $63/hour). In the case involving the review by a lawyer to redact their invoice, the CAT reduced the rate sought from $225/hour to $130/hour.
Were legal fees awarded?
A few of the cases give us some insight on how much it has cost the corporation to respond to a case before the tribunal. So far, corporations have spent the following in legal fees:
- $3,000 in one case
- $10,000 in another
- $11,000 in a third one
The other cases are silent on the question, mostly because the parties have not sought costs against the other. In all of the cases where legal fees were sought, none were awarded.
Cost will only be awarded in exceptional circumstances. Being successful is not sufficient, even if the position taken by the other is unreasonable. The CAT already alluded to the fact that it would award legal fees when the conduct of a party is grossly unreasonable or when their conduct unduly complicated the matter or when they acted in bad faith or with malice.
What’s ahead for the CAT?
The above is based on the CAT’s first year of operations. It will be interesting to see how these statistics evolve over time. It’ll be even more interesting to read how the CAT rules on more disputes when/if the CAT’s jurisdiction gets expanded.