condominium disputes

A new path for resolving condominium disputes

What is known so far about the tribunal envisioned in Ontario's recent legislative reforms
Tuesday, August 9, 2016
By Marc Bhalla

Little is currently known about the tribunal envisioned in the recently passed Bill 106, the Protecting Condominium Owners Act. The legislation, which will update current condo laws once proclaimed into force, leaves it to the coming Condominium Authority and regulations to make appear. However, the very notion of introducing a tribunal to help address condominium conflict has been intriguing to many involved in Ontario’s condominium landscape.

With the introduction of new legislation in 2015 came headlines claiming that condominium disputes would be settled faster and on a less costly basis. As everyone awaits particulars as to how exactly this is going to be achieved, speculation and a view of what is being done to enhance condominium conflict management in other regions offer plenty to think about.

The legislation envisions a tribunal available to condominium corporations and unit owners (possibly others) that would both direct and decide disputes. While it remains to be seen exactly which disputes will fall within the tribunal’s purview, it is believed that the tribunal will have jurisdiction over a limited set of issues. The notion is similar to other tribunals in the province, such as the Human Rights Tribunal and the Landlord and Tenant Board, in that issues will be decided outside of the courts.

It is also believed that decisions will be difficult to appeal and monetary awards will be easy to collect through, or off-set against, common expenses. The nature of how awards will be collected and the fact that the self-funded tribunal will in part rely on a monthly fee levied on unit owners may well explain why tenants and others could be excluded.

The benefits of introducing a place that is focused on condominium disputes include easing the current burden on a backlogged court system and (hopefully) involving decision makers and conflict guiders who appreciate condominium law and the realities of “condo life”. Under the current system, it takes time to bring a case to court, and then once it gets there, there is no guarantee that the judge deciding the case will have familiarity with the intricacies of condominiums.

Concerns about the proposed tribunal include the risk of replacing one backlogged system with another if the tribunal is not set up to be able to promptly address all of the cases it receives. Conversely, there is also a fear of the fees collected from unit owners going to waste if it were overstaffed. Questions around the qualification and training of tribunal staff remain a material consideration as well.

One need not look too far to see where similar structures have stumbled in the past. It can literally take years to work through the process of the Ontario Human Rights Tribunal currently. Similarly, in 2012, the Financial Services Commission of Ontario outsourced up to 2,000 mediation files per month in an attempt to catch up and maintain normal workloads for its in-house personnel.

Technology may end up being the saving grace here as it is highly anticipated that the tribunal will incorporate online dispute resolution processes. Those keen to get a better grasp of how this may work can look to what is happening currently in British Columbia with its Civil Resolution Tribunal (CRT).

B.C.’s CRT is designed to provide 24/7 access to resources that can help address condominium disputes, including a Solution Explorer. The Solution Explorer will take parties through a process where they can identify their problem, find out what information they may need to address it, understand what they can do to improve the situation and learn about possible next steps, including the recommended path.

Presumably, Ontario can establish something similar that can help educate and inform those experiencing condominium issues easily and quickly, without being costly. While likely limited in the degree to which it can take unique circumstances into account, a system of this nature can streamline the process by directing parties to the appropriate path to conflict resolution.

In another example, the City of Mississauga’s By-law Enforcement Department has incorporated a less automated and less formal system similar to what is being envisioned in Ontario. The department’s website dedicates sections to various common complaints it receives (noise, fences, debris, etc.), and each section provides information — such as which by-laws apply and how to lodge a complaint — in an easy-to-access format.

After a complaint has been submitted and initially reviewed, the department’s website encourages parties to follow a particular path to address their conflict — mediation, court action, etc. This helps ensure that cases are directed to the appropriate place. Issues ill-suited to mediation do not get delayed going through the motions, matters that really have no business of being in court do not clog up the queue, and anyone wishing to pursue a matter better understands the reality of what’s involved in doing so upfront.

The ADR Institute of Ontario, Association of Condominium Managers of Ontario and Canadian Condominium Institute’s Toronto & Area Chapter all made submissions to the government standing committee that reviewed Bill 106 clause by clause after its second reading. (Note: The writer and his colleagues were directly involved in these submissions.) In their submissions, the groups suggested empowering parties involved in condominium conflicts that fall within the tribunal’s jurisdiction to mediate or arbitrate privately instead, if they mutually agreed to do so.

The idea was to provide an alternative way to address disputes, in the event that the parties wished to keep the proceedings out of the public domain or if the tribunal became backlogged and an expedited option was available. This recommendation was not adopted in the legislation as it was ultimately passed, so it is expected that private mediation and arbitration will not be immediate options to address matters within the tribunal’s jurisdiction. Instead private mediation and arbitration will be among the paths to which the tribunal directs matters beyond its purview.

The alternative dispute resolution (ADR) community and others appreciate the opportunities that mediation and arbitration provide to preserve relationships and offer win-win solutions for conflicting parties. The big hope is that the Protecting Condominium Owners Act’s regulations and Condominium Authority will provide the long-awaited and much-needed direction to these processes that is lacking in the current legislation. Establishing a consistent, province-wide process for mediating and arbitrating condominium disputes will go a long way in helping to ensure that the most is made of these paths when it is clear that they are the appropriate means to address an issue.

Marc Bhalla leads the Condo Mediators team. He focuses his mediation practice on condominium conflict management.

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