Condominium Management Law Blog

Recap of the Top CAT Cases of 2022: Part 2

byMichelle Kelly

In part one we looked at the top court cases and news of 2022. Today, we look at the top cases from the Condominium Authority Tribunal (CAT). On January 1, 2022, the CAT’s jurisdiction was expanded to include nuisances, which is currently defined as including noise, odour, smoke, vapour, light, vibration, and any nuisance described in the declaration, by-laws, or rules. Not surprisingly, the CAT heard many nuisance cases this year. For perspective, the CAT has released 384 decisions since it opened its door. 20 were released in 2017-2018, 49 in 2019, 47 in 2020, 126 in 2021, and 142 in 2022! In no particular order, here is our list of the most memorable CAT cases of 2022.

It’s Raining Cats and Dogs

The CAT was busy again with cats and dogs this year. The CAT required animals to be removed where the condominium had a no-pets provision, where the specific pet was prohibited by the declaration or rules, or where the animal was deemed a nuisance because its owner did not follow the pet rules. The CAT also ordered owners to reimburse the condominium for damage caused by their pets, such as damages caused by owners allowing their dog or cat to urinate on balconies.

  

One of the most interesting line of cases was the CAT’s balancing of competing interests and addressing requests for emotional support animals or service animals:

  • An owner in a no pets building requested permission to have an emotional support animal. Another owner was opposed to the animal because she had severe allergies and mental distress related to the dog. The CAT reviewed the evidence and the law, and found the condominium adequately balanced the competing interests by allowing the owner to have the animal to support her disability. The other owner had not provided sufficient evidence to prove the condominium had a duty to accommodate her allergies and mental distress. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat40/2022oncat40.html

     

  • The CAT ordered certain documents be removed from the public record of the matter to protect the dignity and well-being of the owner seeking accommodation under the Human Rights Code to keep her dog. The condominium was also ordered to pay $6,250 for failing to accommodate the owner and to give the owner a credit on her common expenses for the costs award and the condominium’s legal costs of $15,000 so she did not pay her proportional share of both costs.

    https://www.canlii.org/en/on/oncat/doc/2022/2022oncat119/2022oncat119.html

     

    Parking & Storage

    There were some parking and storage cases in 2022 as well, but not nearly as many as we read in 2021. Here are the highlights:

  • The CAT declared leases of parking spaces by condominium to owners invalid because the condominium had not passed a by-law to lease common elements as required by section 21 of the Condominium Act, 1998. The CAT declined to award damages sought from owners.

https://www.canlii.org/en/on/oncat/doc/2022/2022oncat93/2022oncat93.html

 

Nuisance

The CAT also heard a few nuisance cases this year, mostly about noise and vibrations:

 

There was even a case about light nuisance this year! The owner complained of a security light installed by the condominium shining into her bedroom window. The CAT found the light was a nuisance and ordered the condominium to replace it with one like the ones it has elsewhere on the property. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat65/2022oncat65.html

Records

The CAT also heard many record disputes this year. Many of the disputes related to the redaction of records: 

  • An owner may request copies of proxies from an AGM, but the condominium must redact info about the owner and unit (i.e. right-hand section of the proxy). https://www.canlii.org/en/on/oncat/doc/2022/2022oncat3/2022oncat3.html

     

  • When redacting records, the condominium must put the reasons for redaction on the record near each redaction as well as describe it in the board’s response to request for records.

    https://www.canlii.org/en/on/oncat/doc/2022/2022oncat13/2022oncat13.html

     

  • Condominiums must provide copies of legal invoices upon request by owners, but may redact most information (i.e. description of services, hourly rates, dates, lawyer performing work) to maintain solicitor-client privilege. The only info remaining is the total amount charged. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat19/2022oncat19.html

    The CAT also made a few decisions about records related to minutes of meetings. Draft minutes are not records. Audio recordings may or may not be records of the condominium depending on the situation. See e.g. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat80/2022oncat80.html where the audit was not a record and the owner was not entitled to audio to prove minutes were inaccurate. See e.g. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat128/2022oncat128.html where the recording was a record, but owner not entitled to copy of it. It seems it is only time before the audit is a record that must be produced. Condominiums may wish to rethink recording their meetings.

    The CAT was also critical (rightly so) of condominiums who breached the Act in various ways, especially in relation to maintaining adequate records:

  • Condominium cannot use its own deliberate non-compliance with the Act (i.e. not holding AGMs or keeping minutes) to justify its inability to produce records upon request. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat16/2022oncat16.html

     

  • Not keeping board minutes in breach of the Act was not a reasonable excuse for not providing them to an owner. The CAT ordered the condominium to start creating minutes of all board meetings and to generate a record that included the list of all dates on which the board met for a three year period and all decisions made and provide the record to all owners within 120 days of the decision. The CAT also ordered the directors to take or re-take the mandatory CAO director training, pay a penalty of $3,000 to the owner, and pay $200 in filing fees. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat112/2022oncat112.html

     

  • The condominium cannot blame transition between management for loss of records. Loss of record is not a reasonable excuse for not providing it upon request and a penalty may be awarded. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat4/2022oncat4.html

     

  • Similarly, the failure of the lawyer to provide minutes to the condominium was not a reasonable excuse. The condominium was ordered to create the minutes and provide them to the owner. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat106/2022oncat106.html

     

  • The CAT may order a condominium to create a record, such as a record of the notices it receives of leased unit, to bring the condominium into compliance. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat77/2022oncat77.html

     

    If a request for records is made for an improper purpose and/or an abuse of process or vexatious the CAT may order costs against the owner and prevent the owner from filing cases in the future. See e.g. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat85/2022oncat85.html where the owner sent over 1000 emails demanding records or complaining of services and had 9 CAT cases against the condominium. The condominium was awarded $2,000.

    Jurisdictional Issues

    The CAT also heard several challenges to its jurisdiction to hear matters. The most interesting debate is where parallel proceedings are bought in the CAT and the Human Rights Tribunal (HRTO). The CAT may deny a motion to adjourn or dismiss a CAT case where there is an HRTO proceeding about the same or similar issues if it feels it would be appropriate to do so. The CAT reasoned that if the HRTO determined there was no Code violation, the condominium would have to proceed with the CAT application. However, if the CAT case proceeded first it could address both the alleged Code violation and the rule enforcement. See e.g. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat86/2022oncat86.html

    The CAT only has jurisdiction to hear disputes related to current owners and occupants. There is no jurisdiction to hear a dispute about a former tenant once the tenant moves out of the unit. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat14/2022oncat14.html

    Costs

    While the CAT has expanded its jurisdiction to include more than record disputes, the decisions on costs are still rarely awarding condominiums their costs, even where they were successful. The CAT may award costs under s.144 of the Condominium Act, 1998, and its Rules of Practice, which requires there to be exceptional reasons to award costs. The CAT has indicated that the costs of seeking compliance are part of “doing business” for a condominium and the CAT will not order costs unless there are exceptional reasons to do so.

    There were a few interesting decisions on costs and penalties this year at the CAT. Our favourite lessons for condominiums are:

    • It was unreasonable for the condominium to incur legal costs to send a letter to the owner without warning him first. The condominium was not entitled to be indemnified by the owner. The CAT declined to impose the owner’s requested four-step process for addressing alleged rule violations. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat108/2022oncat108.html.

       

    • The condominium commenced a CAT case against an owner alleging various breaches of the rules, including smoking. The CAT found there was insufficient evidence to prove it was the owner causing the nuisance. The condominium provided evidence from two owners (cancer survivors) who testified smoke increased after the owner moved in and was absent when he was not present. The owner testified that he was not home during some of the times when he was alleged to have been smoking in his unit. No one had witnessed him smoking and the owner testified he saw other people smoking on their balconies. The condominium declined to visit the owner’s unit after he invited them to do so. There was no evidence of investigation by the condominium, so the CAT dismissed the application and awarded the owner $4,000 in costs. https://www.canlii.org/en/on/oncat/doc/2022/2022oncat124/2022oncat124.html

       

    • There is one case where the CAT did not provide much deference to a board’s determination that a pet was a nuisance and ought to be removed from the property. The CAT was clearly concerned with a lack of evidence presented by the condominium. The condominium’s only evidence was a letter to the owner requiring the removal of their pet. There was no evidence from the board or manager on the steps taken to investigate. The condominium argued it relied on the City’s dangerous dog order and the injuries sustained during an attack. The CAT preferred the evidence of the owners, which demonstrated the dog was now a minimal risk as he was now trained, muzzled, and leashed at all times. (Note: some disagree with this as the CAT considered evidence that may not have been before the board when it made the decision to deem the dog a nuisance). The CAT awarded $5,000 (about 1/3) of their legal costs to the owners.

      https://www.canlii.org/en/on/oncat/doc/2022/2022oncat92/2022oncat92.html

       

      The CAT cases this year show it is vital that condominiums properly investigate complaints before taking steps to seek compliance from others in response to those complaints. The investigation may include speaking with other owners, including the ones allegedly violating the rules, hiring experts, and conducting testing or repairs. Here are our other tips for maximizing your chances of success at the CAT:

  • Warn the owner before sending a letter from a lawyer.
  • Send a few letters before starting the CAT case.
  • Don’t start a CAT case for minor technical breaches.
  • Include both tenants and owners in efforts to seek compliance where a unit has tenants.
  • Keep everyone – complainant, alleged offender, unit owner if tenanted unit – informed.
  • Once at the CAT, ensure you upload evidence demonstrating the alleged breaches. This should include documents (i.e. letters, rules, photographs) and testimony (i.e. from the manager or board member explaining the complaints, steps taken to investigate, and enforcement efforts).
  • Ensure the legal costs are proportional to the nature and complexity of the issues in the hearing. Don’t spend $15,000 on a trivial issue.

Final Thoughts

It was a very busy year again for the CAT! That trend is sure to continue as people become more familiar with it. There are rumblings of potentially expanding its jurisdiction again, so it will be interesting to see how 2023-2024 unfolds.

We wish you all a happy holiday season and prosperous new year!

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