July 2023
When you read through Condominium Authority Tribunal decisions, a common thread that runs through many of them is one (or both) of the parties: “…has failed to take reasonable steps to…”
But what is ‘reasonable’ and in particular, what is reasonable in the context of condominiums?
As the Condominium Authority of Ontario does not define “reasonable,” it’s left to the adjudicator (member) to make that assessment. While common law provides some guidance around reasonableness standards, for the condominium community – owners, residents, condominium managers and volunteer board members – it’s left to their self-assessment.
So before beginning a Tribunal claim, assess if you’ve taken all reasonable steps.
For residents, that includes:
- Attempting to first resolve through all available channels and clearly setting out your issue(s) in writing, submitting it to either the condominium manager or following dispute protocols provided by your condo.
- Ensuring your claim(s) are factually correct and that you’ve got sufficient evidence to fully support your position.
- Making best efforts to resolve the matter(s) that led to the claim and remain open to finding a suitable resolution from the outset and throughout.
- Being realistic in expected outcomes, rooted by what the Tribunal is empowered to do.
For condominium corporations, that includes all the above plus (the longer list reflects the greater onus on the corporation):
- Providing documentation in your possession that can assist in de-escalating the dispute and lead to resolving the matter. Ensure your governing documents are relevant and in line with all applicable laws – documents created more than 5 – 10 years ago will likely require some revisions to remain current.
- Assessing your processes and protocols for applying rules that are reasonable, fair and consistent. It’s reasonable to expect if you grant allowances for one, comparable allowances should be made for all.
- Assigning an impartial person to take lead in overseeing a dispute that escalates beyond normal and to inform the board. That impartial person may be a director, resident or paid third party, to provide an objective perspective and to preliminary, informal mediation (if appropriate, and only if all parties are open to it).
- Consult with your legal counsel proactively – to get their guidance on dispute resolution and on “all reasonable steps” you can take in advance of a matter escalating to the Tribunal. However, hold back with legal counsel issuing letters/notices until necessary and ideally only after all other ‘reasonable’ measures have been unsuccessful.
- Budgeting for increased legal fees annually. Tribunal claims are going to increase as more learn about CAT; condominiums would be prudent to anticipate higher professional fees, in part to empower their manager to get advice from their lawyer at early stages and given appearing before the Tribunal is expensive.
The challenge is to be truly objective with yourself in your assessment of your contribution to the dispute and failures to resolve it before it gets to the Tribunal – if you aren’t, count on the adjudicator to be in their assessment and of you!
Bruce Young, CPA, CA is a business consultant and founder of Collective Agreement. He works with organizations dealing with complex disputes and facing litigation, providing strategic assessment, litigation support and project management.
