CAT

Cases spotlight the CAT’s wait-and-see approach 

New perspectives on motions to dismiss and disclosure of records
Monday, September 27, 2021
By Victor Yee

Condominium corporations who are defending against an application brought by a unit owner at the Condominium Authority Tribunal of Ontario (CAT) often wonder whether they should bring an early motion to dismiss the unit owner’s case before the CAT undergoes a full hearing of the dispute, due to what the condo perceives as a misuse of the CAT process by the unit owner.

In certain situations, such a motion to dismiss can be useful—and even successful—to toss out a CAT case before the condo has expended more time, energy, and resources going to an all-out Stage 3 hearing.

However, generally speaking, the CAT appears to have now adopted a wait-and-see approach, not only with respect to motions to dismiss, but also with respect to the disclosure of records to a unit owner whom the condominium might perceive as problematic.

In a recent case, Aquilina v. MSCC 823, 2021 ONCAT 71, a London condominium brought a motion to dismiss a unit owner’s CAT application for being frivolous and vexatious, pursuant to Rule 4.5 of the CAT’s rules of practice.

However, the CAT dismissed the motion, and instead proceeded with the full Stage 3 hearing of the records dispute, stating that “the level of animosity and ill will reached new heights” at this condominium community, and the messages posted in the CAT portal became “very personal and at times very inappropriate”.

The CAT tried to sift through the personal animosity, and ultimately ruled that the unit owner was indeed entitled to the condo’s list of owners that she sought—despite the condo’s assertions that if the list of owners was provided, she would misuse it to harass other owners.

This recent case follows a long line of cases (“long” in the context of the CAT’s overall lifespan since being created on November 1, 2017) where the CAT has repeatedly held that a unit owner’s past conduct, even if somewhat problematic, does not automatically disentitle them to access the condominium’s records under Section 55 of the Condominium Act. Instead, the CAT has generally held that the condo should give the requested record to the owner, and then subsequently enforce against that owner if the record is misused.

The CAT’s wait-and-see approach may be an iteration of its default presumption that unit owners are generally entitled to see their condo’s records and its hope that the unit owner will, once she receives the record, exercise greater care in how she uses it.

In another recent case, Calderon v. YCC 274, 2021 ONCAT 70, a Toronto condominium brought a motion to dismiss a unit owner’s five ongoing CAT applications and sought to have the CAT declare that the unit owner was “vexatious” and, therefore, unable to file any new CAT applications without first obtaining the CAT’s permission to do so. The CAT dismissed the condo’s motion and found that the unit owner had not behaved in a vexatious manner even though he filed eight cases with the CAT against the condominium.

Instead, the CAT found that the unit owner merely had a “deep mistrust of the condominium”, and that all eight of his CAT cases were permissibly questioning “the fairness and consistency of the corporation’s enforcement of rules”. The CAT wanted to have the ongoing cases proceed as-is, so that each could be decided on their merits instead of being dismissed via motion.

This wait-and-see approach by the CAT is perhaps best evidenced in Yeung v. MTCC 1136, where the Toronto condominium repeatedly asked the CAT to find that the unit owner was a “vexatious” litigant. On May 5, 2020, CAT Vice-Chair Keegan Ferreira declined to grant the condo’s motion to dismiss for being vexatious. On September 18, 2020, CAT Vice-Chair Michael Clifton also declined to label the unit owner as a vexatious litigant.

It was not until December 17, 2020 when CAT Chair Ian Darling stepped in, that the CAT finally—after the unit owner had filed eight applications to the CAT— declared the unit owner to be a vexatious litigant and required him to obtain the CAT’s permission before filing any new CAT applications.

Although the unit owner continued to try and file at least one new CAT application thereafter on January 22, 2021, Darling denied him permission to pursue the new application.

So, what changed? According to Darling, what tipped the scales was that the unit owner’s more recent applications were trying to re-litigate old grounds, and the frequency of the new applications had increased in 2020 (one submitted in 2018, two submitted in 2019, and six submitted in 2020). The CAT was fearful that “without limiting new applications, it is likely that this pattern will continue”.

Even then, however, Darling was careful to note that “the number of applications alone is not sufficient to consider them vexatious”. The CAT has not provided a clear, bright-line threshold where a unit owner’s repeated applications bring him into “vexatious litigant” territory—and the CAT is unlikely to provide such clarity in the future.

Ultimately, the CAT allows a generous degree of “flex” room for individuals with grievances against their condominium, unless the application is clearly vexatious; then the CAT will generally allow for the case to be heard at least, even if the CAT does not award a penalty or costs to the individual unit owner at the end of the day.

Instead of cutting the unit owner’s case short, the CAT appears to prefer waiting and seeing how the case unfolds. Instead of denying the unit owner’s access to their condo’s records, the CAT appears to prefer to trust that the unit owner will not abuse the record once disclosed to them.

Victor Yee is a condominium lawyer and litigator at Elia Associates, a law firm that specializes in condominium law. Victor has successfully represented clients at all levels of court in Ontario, in various tribunals throughout the province (including the CAT), and in condominium-related mediations and arbitrations. He can be reached via email at vyee@elia.org.

 

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