We are expecting the new Condo Authority Tribunal to be up and running as early as November 1st, 2017. Already some people are suggesting that it is best to delay compliance matters and wait for the Tribunal to adjudicate on condo disputes. In this post, we blog about whether this makes sense and on the limited jurisdiction of the Tribunal.
The New Condo Authority Tribunal
As part of the revamping of the Condo Act, the province is setting up a new Condominium Authority Tribunal to adjudicate specific condominium disputes. This new Tribunal is expected to have exclusive jurisdiction to hear, and make legally binding and enforceable decisions on, certain condo disputes. It is important to note that the Tribunal will not have jurisdiction over every condo dispute. Only those over which it is given jurisdiction by regulation.
What will the Tribunal not have jurisdiction over?
We already know that the Tribunal will only have jurisdiction over disputes involving the corporation, its owners, occupiers or mortgagees. As such, the Tribunal will not have jurisdiction to adjudicate disputes involving property managers or builders.
Similarly, unless future regulation provides otherwise, the Tribunal will not have jurisdiction over disputes between two sister-corporations sharing assets or common elements.
The Tribunal will also not have jurisdiction over disputes pertaining to easements or involving occupiers liability (when someone gets injured on common elements).
The Tribunal will also not have jurisdiction to make an order permanently evicting someone. The Corporation will have to continue seeking such orders from the Superior court of Justice. Owners in a landlord capacity will have to bring any disputes they may have with their tenant to the Landlord and Tenant Board.
Most importantly, it appears that the Tribunal will not have jurisdiction over disputes arising from liens!
It is interesting to note that, even when the dispute to be adjudicated is between two owners (or occupants), the parties commencing the application will have to notify the corporation.
So what will the Tribunal have authority over?
As indicated above, the Tribunal will only have authority over disputes delegated to it by regulation. As of now, the only matter expected to be delegated to the Tribunal on November 1st, 2017 are disputes over access to corporation’s records (under section 55 of the Condo Act).
For now, and until the Tribunal’s jurisdiction is expanded, all other disputes must be dealt with outside of the Tribunal, through existing mechanisms. It may therefore not be wise to delay existing compliance matters in the hope to have the Tribunal adjudicate upon them.
What kind of order will the Tribunal be able to make?
If the Tribunal is eventually granted the required jurisdiction, the Tribunal will have the authority to :
- Order someone to comply with the legislation or governing documents;
- Order someone to do or not to do something over which the tribunal has jurisdiction;
- Order someone to pay damages of up to $25,000 (which happens to be the Small Claims court jurisdictional limit);
- Order a party to pay the legal costs of the other party;
- Order a party to pay the cost of the tribunal (this is different from the cost of the other party. Compare this to how things presently work in court: a party may be ordered to pay the legal cost of the other party but never to pay the cost of the tribunal. That is paid by the province. One could assume that this power is granted to the Tribunal to ensure that the CAO and the Tribunal are not financed by the province).
- Order any other relief the Tribunal considers fair in the circumstances.
Any order for costs, penalty or compensation will have to be paid within 30 days of the Tribunal’s decision (unless ordered otherwise). Corporations will be able to add to a unit’s common expense any monetary award it obtained. Similarly, an owner will be able to set-off any monetary award it obtained against the contributions payable by the unit. This means that an owner could get a break and not have to pay his or her common expenses until he has recovered the amount the Corporation was ordered to pay him/her.
How much time to apply to the Tribunal?
Anyone wishing to apply to the Tribunal, will have to do so within 2 years after the dispute arose. This is similar to the standard limitation period in Ontario. Note however that, unlike a limitation period, the Tribunal can extend this 2 year period.
Parties will be able to appeal decisions of the Tribunal to the Divisional Court.
How will matters be heard?
It is interesting to note that the Tribunal will be able to hear matters orally, in writing, in person, by phone, by video conference, by email or through the use of electronic means. This is particularly interesting as the CAO indicates on its website that the Tribunal will provide an online dispute resolution forum.