Appealing Decisions From the Condominium Authority Tribunal
With the Condominium Authority Tribunal (“CAT”) just recently turning a year old, we are beginning to see more and more CAT decisions being released. As the jurisdiction of this tribunal is expected to increase, we also expect an increasing number of condominium disputes to be resolved through this online dispute resolution process.
However, what happens if one disagrees with a decision from the CAT? Is there a way to appeal a decision from the CAT?
Pursuant to the Condominium Act, s. 1.46(2), an order from the CAT can be appealed to the Divisional Court. The Divisional Court may affirm, reverse or vary an order of the Tribunal. It is important to note that CAT decisions can only be appealed on a question of law. In other words, unless the tribunal member made an error in law when arriving at its conclusion, the decision cannot be appealed.
While we do not yet have any court decisions respecting appeals of CAT decisions, there are cases in British Columbia respecting appeals of decisions from the Civil Resolution Tribunal (“CRT”). These cases are interesting and may provide some guidance going forward as the CRT (like the CAT) adjudicates condominium disputes through an online platform.
In one recent BC case regarding appeals from the CRT, Allard v the Owners, Strata Plan, the BC Supreme Court provided some examples on what it considers to be questions of law. In this proceeding, Mr. Allard sought a CRT Order requiring his Strata to maintain and repair his solarium as part of an ongoing building exterior renewal project.
The CRT ruled against Mr. Allard on the basis that:
1. He knew the solarium was an addition built by the previous owner;
2. He knew the previous owner and the strata signed an agreement whereby the owner would be responsible for the repair and maintenance of the solarium; and
3. He did not meet the legal test for proving that the strata’s actions were unfair to him.
Mr. Allard proceeded to appeal this decision from the CRT. In order to do this, he first needed to obtain leave (aka permission) from the Court to file his notice of appeal. In granting leave, Justice Schultes highlighted some issues that could constitute questions of law:
• The application of an incorrect legal test;
• An incorrect application of the correct legal test; and
• An erroneous interpretation of evidence;
In our view, an Ontario court is likely to agree that the abovementioned issues would (among others) constitute questions of law.
The purpose of the CAT is to provide a timely way for condominium disputes to be resolved outside the traditional court system. The appeals procedure continues with this objective by limiting appeals to only questions of law.
Interestingly, because permission of the court is not required for a party to appeal a CAT decision (unlike in BC), I think that we will eventually see more appeals of CAT decisions in Ontario than of CRT decisions in BC.
Stay tuned to Condo Law News and keep up date on the latest developments and amendments to the Condominium Act and other related statutes.