Area of Law: Real Estate Law
Answer # 421
Resolving condominium disputesRegion: Ontario Answer # 421
Types of disputes
A condominium combines both business and community living and disputes are inevitable. Condominium disputes can involve a wide variety of issues between condo owners, tenants, occupants, and condo corporations. Some will be personal disputes, as between two individuals. Others will require the input or actions of the Board, and the involvement of the condominium corporation. It is always best to attempt to resolve a dispute at the earliest time possible, and through the most direct means.
The questions you may ask yourself are:
- Can you deal with the matter directly?
- Can management deal with this issue?
- Does the issue need to be brought to the Board?
- Does the situation require the involvement of the corporation?
- Do you need to take other steps, such as mediation, arbitration; or can you file a complaint with the Condominium Authority Tribunal (CAT)?
1. Disputes with other tenants
Sometimes conflict relates to tenants in the building. This includes residents who rent the condominium unit, as well as owners. If your neighbour is causing a problem, try to have a conversation about the issue. However, not all matters are easy to resolve. If the matter persists, consider who might be best to assist you with the problem. For example, if garbage is being left in an inappropriate place, then management can help by putting up a notice. Although the goal is to resolve the issue, sometimes matters can worsen.
Some disputes are systemic. Repeated behaviours that are not appropriate, or matters that affect multiple units may be such examples. These should be brought to the attention of management, and a decision can be made on how to proceed.
As of January 1, 2022 changes to section 117 of the Condominium Act prohibit a person from
- causing, through an act or omission, conditions or activities in the condominium units, common elements or assets that are likely to damage the property or the assets or cause an injury or an illness to an individual;
- carrying on or permitting activities in the units, common elements or assets if the activity results in the creation or the continuation of (a) any unreasonable noise that is a nuisance, annoyance, or disruption to an individual in a unit, the common elements or the assets or (b) any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets.
Previously, in most cases, these issues would have been dealt with in court to be resolved. The amendments to the Act extend the Condominium Authority Tribunal’s ability to deal with these types of issues.
2. Disputes with condo governance
If you believe that management is causing the problem, it may be difficult to know how to deal with the issue, and a Board member may be of assistance.
There are the disputes that are the business of the corporation. For example, if the condo corporation has entered into a gardening service contract but the grounds are not being properly serviced. Or, a dispute between two buildings that share common facilitates.
The Condominium Authority Tribunal (CAT) was recently created to provide a faster and less costly method to resolve problems arising in a condominium environment.
Some disputes with the condominium corporation may be resolved by mediation and arbitration. Unfortunately, the law does not provide guidelines and time limits for these processes. Mediation may resolve the matter, or if it does not – the next option may be to proceed to arbitration. Sometimes, it is best to proceed directly to arbitration, depending on the type and complexity of the dispute. There is a cost to both these processes.
Mediation is specified in the Condominium Act, in order to give people a chance to have a less formal process in which to discuss and resolve their disputes. It is a confidential process, in that there is no judge and no court order at the conclusion. The mediator assists the parties and facilitates the process in order to arrive at a resolution. The mediator may or may not have a legal background, but certainly should have experience in condominium living, condominium law and dispute resolution. The mediator is not representative of any party and does not take sides, but rather, is involved in the process to assist all parties.
The costs and length of mediation vary from issue to issue, and mediator to mediator. Cost and payment for the mediation is determined by the parties before mediation. In some cases the parties split the fees, in other cases the entire cost is borne by one side. This is not relevant to the outcome of mediation, and the mediator will remain neutral no matter who pays the fee. The fact that a mediator is used multiple times by management to resolve disputes is an endorsement of the skill of the mediator to bring about a resolution. It does not reflect any bias on the part of the mediator.
Keep in mind that although mediation is informal, often the property manager and the lawyer for the condominium will be in attendance. If you have a dispute with the condominium corporation, then you too have the option to bring a lawyer, or an advisor with you.
Arbitration is a process in which a neutral party, called an arbitrator, is hired to decide the outcome of the dispute. It is a private process, and the parties can determine, together with the arbitrator, how the process will proceed. It can mirror a court, with witnesses and evidence, or can be less formal. The parties and the arbitrator decide on the issues that will be presented, and decide how much time to schedule for the arbitration. Sometimes, in complicated arbitrations, expert witnesses are bundled together, rather that each side presenting their expert witness. This maybe an efficient way for the arbitrator to determine what the experts agree upon, and where their opinions on a particular matter, differ.
Arbitrators do provide a ruling at the conclusion of the arbitration. Because arbitrations can be costly, there is also an opportunity to give submissions on costs that were incurred in getting the matter through the arbitration process. Legal fees, disbursements, payment of expert, are such examples. These can be presented to the arbitrator who will render a decision as to the costs. They may be divided by the parties or borne solely at the expense of one of the parties.
The Act allows some matters to proceed to court. Also, it is important to note that some disputes may fall under the jurisdiction of the Landlord and Tenant Board, or the Ontario Human Rights Tribunal.
3. Records related disputes
Under the Condominium Act, owners, purchasers, mortgagees, as well as prospective buyers and their agents have a right to access certain condo corporation records. Common records issues include:
- not being able to get access to a record; or,
- disagreeing with the fee the condo corporation is charging to provide a copy of the records, as well as
- the types and quality of records being kept.
It is in everyone’s best interests to resolve these matters informally. However, more serious disputes or ones that cannot be resolved through other methods may be brought to the Condominium Authority Tribunal (CAT) for formal action.
Condominium Authority Tribunal (CAT)
Along with other major amendments to the Condominium Act, the Condominium Authority of Ontario (CAO) was established to improve condominium living in Ontario and make the process of resolving disputes condo disputes faster, fairer, more effective and less expensive. The Authority created the Condominium Authority Tribunal (CAT), an online dispute resolution service to help resolve disputes through case management, mediation and adjudication. CAT also provides negotiated settlements and legally binding decisions that everyone must obey.
Who can bring a dispute to CAT?
According to the amended Condominium Act, any one of the following can apply to the Tribunal for dispute resolution:
- an owner of a condominium unit;
- a holder of a mortgage on a condominium unit (mortgagee);
- a buyer of a condominium unit (purchaser); and
- a condominium corporation.
What types of dispute issues does CAT deal with?
CAT will accept applications regarding the following issues:
- Records issues
- Provisions in a condo corporation’s governing documents that deal with:
- Pets and animals
- Parking and storage
- Indemnification (e.g., chargebacks) related to the above topics.
- Issues with compliance with a Settlement Agreement reached in an earlier CAT case
- As of January 1, 2022 issues that involve other condominium residents creating a nuisance, annoyance, or disruption, or making unreasonable noise, such as:
- Smoke and vapour (including cannabis or smoke that seep into units from doorways or balconies);
- Odours (cooking, perfume, candles or incense, and odours caused by the operation of shared elements such as garbage chutes);
- Light (such as light entering a unit, and insufficient lighting in parking or storage areas);
- Noise and vibrations (heavy footsteps, loud pets, loud music, shouting or operating tools, and vibrations caused by the operation of common elements, such as elevators, garbage chutes, HVAC or plumbing systems)
- As of January 1, 2022, issues with residents who ’cause, through an act or omission, conditions or activities in the condominium units, common elements or assets that are likely to damage the property or the assets or cause an injury or an illness to an individual’.
For more information, view Ontario’s Condominium Act. For more information on the Condominium Authority Tribunal (CAT) or to file an Application for Dispute Resolution, visit their website at condoauthorityontario.ca.
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