Concerns voiced over new condo tribunal
Law Times
By Alex Robinson
23 October 2017
Lawyers are voicing concerns over the limited jurisdiction of the new
tribunal being set up to handle condominium disputes when it opens its
doors in November.
The Condo Authority Tribunal was set up as part of the provincial
government’s overhaul of the Condominium Act and initially will only
adjudicate disputes concerning access to condo records.
It is expected to widen its jurisdiction on certain issues, but some
condo lawyers say it should be expanded to everything condo-related.
“If we are going to have a specialized tribunal, that tribunal should
deal with everything and anything that is within the condominium
world,” says Rodrigue Escayola, partner with Gowling WLG (Canada) LLP.
The provincial government has created the new tribunal in the hopes of
getting condo disputes out of the courts and into a specialized
tribunal that will make them faster and cheaper. Lawyers say the
effectiveness of the tribunal will largely depend on how restrictive
the tribunal’s authority will be going forward.
The government has also set up a new administrative authority called
the Condominium Authority of Ontario, as well as a new regulator for
condo managers called the Condominium Management Regulatory Authority
of Ontario, which will handle complaints against managers.
The CAT is expected to be primarily an online dispute resolution
platform and will make binding decisions about disputes under the Condo
Act.
But new regulations that have been rolled out up to this point have
only given the tribunal jurisdiction to handle records disputes.
While the act gives the tribunal a broad spectrum of issues with which
it can deal, it is not clear what kinds of disputes future regulations
will permit the tribunal to adjudicate. And there is some debate as to
how wide the tribunal’s jurisdiction should expand. Escayola says it is
unfortunate that the tribunal will not adjudicate disputes involving
managers or builders, or Tarion, and that the issues the tribunal will
only deal with are ones that would have been dealt with in Small Claims
Court.
“You’ve removed the actual meat and potatoes of what I thought the
tribunal would want to deal with,” he says. “So we haven’t lightened
the load from the Superior Court of Justice.”
Escayola says practitioners and their clients might not want to wait to
have their compliance matters heard by the tribunal, as it is not clear
if and when its jurisdiction will widen.
Christy Allen, of Davidson Houle Allen LLP, says that while lawyers in
Ontario are focusing their current concerns around the limited
jurisdiction of the tribunal, future concerns will likely be whether
the body can deal with the sheer volume it will likely see as it starts
to adjudicate different types of matters. Lawyers say the condominium
authority is looking to develop a format for the tribunal that will do
away with the need for representation in an effort to make it an
accessible forum.
But lawyers say this might not be realistic in an area of law that can
be quite complex, especially with the long list of new regulations
being implemented.
Allen says complainants might not necessarily need representation in
some of the specific straightforward issues such as records.
However, if the regulations end up conferring the amount of authority
given to the tribunal by the legislation, trying to make the tribunal
accessible may be difficult in practice, she says.
“Once the issues that the tribunal starts to deal with become more
complex, the more complex they are, the greater the need for legal
representation, whether it’s a lawyer or a paralegal,” she says.
Allen says she also has concerns that the tribunal could eventually
lead to a substantial increase in complaints being launched in this
area.
“It opens the door to be more accessible, which is a good thing on one
hand, but on the other hand, it means there’s a possibility of having
an unmanageable volume of complaints being received by the tribunal,”
she says.
Chris Jaglowitz, who sat on the working group that advocated for the
tribunal, says the initial jurisdiction of the tribunal should be very
narrow, as it needs to start with a manageable load. But he also fears
the tribunal may be going online too early and too quickly.
The chairman of the tribunal was only just named, and lawyers say the
condo authority has released little information about the platform or
its rules.
“I have a sinking feeling that unless the tribunal is well prepared to
hit the ground running when it opens its doors, it will bog down and
fall way short of its potential,” says Jaglowitz, who is a condo lawyer
with Gardiner Miller Arnold LLP.
He adds that given the CAT is funded largely by a levy paid by condo
unit owners, the tribunal will have a lot to live up to and must be
able to dsmonstrate good value very quickly or else may risk losing its
clients’ confidence.
Priya Ramsingh, a spokeswoman for the Condominium Authority of Ontario,
did not provide a timeline as to when the CAT’s jurisdiction will be
expanded, but she said the tribunal will start accepting applications
for records-related disputes on 01 November.
“It is expected that the types of disputes that can be heard by the CAT
will expand over time as more is known about the priority areas to be
added to its jurisdiction,” she said.
While the tribunal will likely play a growing role going forward,
Jaglowitz says the tribunal’s importance will be secondary to the CAO’s
principal mandate of providing information to condo stakeholders that
they can use to resolve disputes early.
“If the information and education delivery is successful, there should
be fewer disputes for the tribunal to handle,” he
says.
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