There is still a fair bit of mystery surrounding the new Condo Tribunal, despite the fact that it is expected to open its doors in less than 2 weeks. How will it work and what will online adjudication look like? In this post, we have a look at how British Columbia did it. The Ontario model may be similar. Are you ready for it?
The Ontario Condo Tribunal
We have already blogged on the limited jurisdiction of the new Ontario Condo Tribunal. This new Tribunal is expected to have exclusive jurisdiction to hear and make legally binding decisions on many condo disputes. It is expected to be up and running on November 1st, 2017, but will initially only over dispute pertaining to access to corporate records.
The British Columbia model
British Columbia launched it’s “Condo Tribunal” in July 2016. It’s actually called the BC Civil Resolution Tribunal (the BCCRT). It is worthwhile to note that, since 2017, the BCCRT model was expanded to include small claim matters of up to $5,000. Small claims jurisdiction in BC is up to $35,000 but the BCCRT only has jurisdiction up to $5,000.
- In Ontario, small claims jurisdiction is up to $25,000. It is interesting to note that the Ontario Condo Tribunal may also eventually have jurisdiction up to $25,000.
When it was launched, the BCCRT was quite an exciting development in the law of British Columbia- being the first online tribunal of its kind. The vision for the BCCRT was to provide greater access to cost effective resolutions for strata corporations and their owners and tenants. [In British Columbia, condominium corporations are known as “Strata Corporations”].
Much like will be the case in Ontario, the BCCRT does not have jurisdiction over every condo disputes. The BCCRT can make decisions with respect to the following:
- Collection of unpaid strata fees (the “common expenses”);
- Unfair actions taken by the strata corporation;
- The strata’s failure to enforce its bylaws (comparable to the Ontario condo rules); and
- The determination of who is responsible for repairs.
The BCCRT does not adjudicate issues affecting the “land”, such as winding up the strata corporation or ordering the sale of a strata lot. These must still be heard in BC’s Supreme Court (the equivalent to the Ontario Superior Court of Justice).
The BCCRT can also decline jurisdiction over a dispute which is too complex for the tribunal’s dispute resolution process or otherwise impractical for the tribunal to manage or resolve.
How the BCCRT works
The BCCRT operates as follows. The claimant (being either a corporation, an owner or a tenant) can access a bundle of web-based tools (known as the “Solution Explorer”) to attempt to resolve the matter without the involvement of the tribunal. They even have self-help tools, which helps you diagnose your problem and give you legal information about it.
- In Ontario, the Condo Authority is already providing comparable resources and tons of information to help you learn about owners’ right and the options available to enforce them.
In BC, if the dispute remains unresolved, the parties can make an online claim to the tribunal. Individual owners or tenants making a complaint against their corporation must generally first satisfy the tribunal that they have requested a meeting with their board to resolve the matter.
The online process is quite impressive. With a few clicks, the parties are able to identify:
- whether the case is a Small claims case or a condo dispute;
- whether the claim is being advanced by the corporation or by an owner or tenant;
- what is the nature of the dispute (ie, do you want a neighbour to stop doing something; is the corporation not complying with an obligation; has the corporation asked you to stop doing something…?)
- what kind of solution you would like to explore…
Eventually, the complainant gets an access code and has about a month to submit his/her claim. The claimant has to pay a filing fee of $125 plus an additional $100 for a decision of the tribunal. Parties may also ask the tribunal to waive the fee.
- In Ontario, the fee to access the tribunal is presently set at $125.
The claimant then has to submit his or her “story” online. Once the tribunal has processed and accepted the claim, the claimant sends or delivers the dispute notice to the other parties. The other parties must respond within a certain timeframe.
The BCCRT then provides some negotiation and facilitation options in an attempt to get the parties to resolve the dispute.
- Comparable processes are being set up in Ontario. There will be an online dispute resolution system where the parties can negotiate in a neutral form and resolve their dispute. If that fails, the Tribunal will provide access to a mediator who will attempt to assist the parties in settling the dispute in a collaborative manner. There will be fees to use these services.
If the dispute is still not resolved by the end of the facilitation process, then it proceeds to adjudication by a tribunal member. Evidence is exchanged and submitted to the adjudicator, and the adjudicator determines whether it will be possible to decide the claim with the evidence provided, or whether an oral hearing will be necessary.
- Ontario appears to also have inserted in its legislation the ability for the Condo Tribunal to render a decision without a hearing.
Finally, the adjudicator issues a written decision and sends it by fax or email to the parties. A decision of the BCCRT is binding and can be enforced by Court Order. It can also be appealed, if necessary.
- The same will be true in Ontario.
Lawyer are not only not required as part of the BC process: they are usually not allowed. Parties are expected to represent themselves, unless they are a child or a person with impaired capacity or unless the tribunal authorises legal representation in the interests of justice and fairness. One of the things the tribunal would consider is whether the other party is represented or whether the parties consent to lawyers being involved.
So, who would represent the corporation? A director, an officer or an individual permitted by the tribunal. It is interesting to note that, in Ontario, when a corporation is involved in a litigation is actually must be represented by a lawyer (unless the court grants permission to waive this). We are not certain yet how that will work with the new Condo Tribunal.
Benefits of the BCCRT
The BC system is designed to be intuitive and inexpensive. One of the disadvantages, however, is that since the process is so new, the rules are often updated, and the decisions can be somewhat hard to predict. We still recommend that parties consult with a lawyer to make sure they are following the latest version of the tribunal rules, to make sure that the BCCRT has jurisdiction over the dispute they are attempting to resolve, and to provide guidance on the likelihood of the success of their claim, or defense, as the case may be.
Stay tuned for what it’ll look like in Ontario.