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CAT decisions

Robert Remillard v. FCC No. 18
Shaheed Mohamed v. YCC No. 414
Joe Micieli v TSCC No. 1753
Janet Cangiano v. MTCC No. 962
Mara Bossio v. MTCC No. 965


Robert Remillard v. Frontenac Condominium Corporation No. 18
Case: 2017-00051R
Adjudicator: Mary Ann Spencer
Date: 04 May 2018

Costs
The award of costs is at the Tribunal’s discretion. Rule 31.1 of the tribunal's Rules of Practice states “The Tribunal will not order one User to pay to another User any fees charged by that User’s lawyer or paralegal, unless there are exceptional reasons to do this.”

Both the Applicant and the Respondent requested the Tribunal award costs if the decision were to be in their favour. The Applicant requested $200, the total of the fees he filed with respect to his application to the Tribunal. The Respondent requested reimbursement of $10,619.29, the legal costs it incurred.

The condo corporation submitted that the Applicant brought “this action unnecessarily against the Corporation and needlessly complicated the proceedings with his allegations of bad faith and impropriety.”

It further submitted that the owner unnecessarily complicated the proceedings throughout the three stages by raising issues that had been previously litigated or had no relevance to the application. And, it submitted that “The Corporation is entitled to its costs because it would be inequitable and unjust for the uninvolved unit owners to bear the Corporation’s cost in successfully defending this meritless application.”

The adjudicator ruled that: "The Tribunal’s online dispute resolution system was developed to help people resolve disputes conveniently, quickly and affordably. The issues before me were not complex and therefore I question the quantum of the Respondent’s costs. I also do not find that the Applicant’s conduct complicated the proceedings, although, necessarily, I have no knowledge of what transpired during the first two stages."

I find two items of interest here. One is that if you want costs, you have to ask for them. Two, if the condo corporation hires a lawyer, if the owner acts reasonably, he or she most likely will not be hit with the corporation's legal costs.

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Shaheed Mohamed v. YCC No. 414

Case: 2017-00011R
Adjudicator: Michael Clifton
Date: June 7, 2018

YCC 414 is a high rise condo at 2645 Kipling Ave, Etobicoke.

The Applicant, Shaheed Mohamed, is a unit owner and identified himself as president of a “Homeowners Committee” of unit owners, but that position was not recognized by the adjudicator.
 
Three issues need to be determined in this case:
1.
is the Applicant entitled to all of the records requested, including the record of owners and mortgagees?
2.
is the Respondent’s demand for a fee for the requested records in compliance with the law?
3.
should an award of costs and/or a penalty be ordered in favour of the Applicant?

On the first issue, the adjudicator concluded that the Applicant is entitled to all requested documents. The Applicant is entitled to receive the condo’s record of owners and mortgagees as requested, as well as all of the other Requested Core Records and requested Non-Core Records

On the second issue, the adjudicator found that although the condo corporation is entitled under the law to demand a fee, the actual fee demanded was not in compliance with the law. An analysis of what constitutes a more appropriate fee is set out in this decision.

On the third issue, the adjudicator found that costs and a penalty in favour of the Applicant were appropriate in this case.

Award
The Respondent shall:
a.
immediately and in any event no later than one business day after payment of $110.25 by the Applicant to the Respondent, deliver to the Applicant the financial records that the Respondent states it has already copied and prepared for pick-up by the Applicant;
b.
within seven (7) days of the date of issuance of this order, deliver to the Applicant in electronic format (either uploaded to the Applicant’s Dropbox account or on a flash drive, at the Applicant’s direction) and at no cost to the Applicant, all the Requested Core Records (other than the financial records);
c.
within thirty (30) days of the date of which the Applicant pays $378.00 to the Respondent, deliver to the Applicant in electronic format (either uploaded to the Applicant’s Dropbox account or on a flash drive, at the Applicant’s direction) all of the Requested Non-Core Records (other than the financial records); and
d.

within thirty (30) days of the date of issuance of this order:

i.
pay to the Applicant costs in the amount of $125; and

ii.
pay to the Applicant a penalty in the amount of $1,000.

In my opinion, there are two important rulings in this award. First, the adjudicator deeply discounted the corporation's costs for providing the non-core documentation. Secondly, the fees for records were to be paid to the condo corporation, not to the manager or condo agent.

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Joe Micieli v TSCC No. 1753
Case: 2018-00025R
Adjudicator: Patricia McQuaid, Member
Date: 25 June 2018

TSCC No. 1753 is a mid-size mixed-use condo at 935 Sheppard Ave. West.

The owner asked for eight records and only three were still outstanding.

 Mr. Micieli clarified during the hearing that with respect to Lux’s credentials (Lux being the Respondent’s current property management company), he was seeking information regarding how long Lux had been providing management services, whether Lux was properly insured and whether its place of business was properly secured for retention of the Respondent’s records and, finally, whether it carried WSIB coverage.

Prior to this Decision, the owner recieved the signed contract between TSCC #1753 and Lux Management Inc. (“Lux”) and Lux’s credentials.

TheTribunal ordered that:
1.
TSCC No. 1753, in accordance with the undertaking given at this hearing, shall notify the Applicant about the completion of the 2016-2017 audited financial statement as soon as these are available.
2.
TSCC No.1753, in accordance with the undertaking given at this hearing, shall provide the 2016 and 2017 (to November 30, 2017) bank statements, with copies of cheques written on the account, to the Applicant free of any charge for photocopying, by no later than June 30, 2018.

The weakness of CAT is shown here by the owner having to wait until until the year-old audited financial statements are released by the board. In my experience, that can take a very long time indeed.

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Janet Cangiano v. MTCC No. 962
Case: 2018-00041R
Adjudicator: Mary Ann Spencer
Date: 19 July 2018

This case makes it clear that the scrutineers at condo AGMs have the responsibility to insure that the proxies were properly submitted. It is very clear to me that most scrutineers, and owners, do not realize this as they are usually not given any instructions what-so-ever.
—CondoMadness

The owner submitted a Records Request for electronic delivery of “legible and unaltered” copies of the proxy forms submitted at an AGM. 

She is concerned that an “extremely high number of proxies” were submitted at the AGM. Her experience, as an ex-director, is that 10 to 15 proxy forms were submitted in previous years; almost 40 were submitted in 2017. She is requesting un-redacted copies of the forms because redaction of the owners’ names would not allow her to determine that the owners themselves submitted the forms.

One of her concerns is that proxies for the AGM were being solicited by the condo’s building superintendent. Several other owners have told her that they found it unusual that the superintendent was soliciting proxies.

The corporation's management confirmed that the corporation has a 2017 AGM registration form which indicates which owners attended the meeting in person and which owners submitted proxy forms.

Asked by Ms. Cangiano's Counsel if the corporation would be prepared to release a copy of this document to her, the management representive stated that because there has been no request for this record, there has been no discussion and she would have to follow the process of sending the request to the condo’s Board of Directors.

Submissions
Counsel for the Applicant submitted that a narrow interpretation of the legislative provisions does not permit a proper audit of election results and cannot be what the legislative drafters intended; there must be practical ways for elections to be properly audited.

The Applicant has valid reasons for requesting un-redacted proxy forms in order to audit the Respondent’s 2017 AGM election; the significant increase in the number of forms submitted in 2017 compared to previous years and the fact that the superintendent solicited proxy forms are “highly suspicious” circumstances. Potential proxy fraud is an issue of serious concern to condominium owners across the province.

The election scrutineers had the opportunity to review the proxy forms.

The condo's lawyer responded that there are no grounds for providing the full records the Applicant requests. The election scrutineers had the opportunity to review the proxy forms.

There is no evidence that the solicitation of proxy forms by the superintendent was improper.

Decision
The provisions of the Act are very clear. An owner is not entitled to receive the information contained on proxy forms which identifies specific units or owners unless a by-law of the corporation permits this.

The Applicant is not entitled to examine or obtain un-redacted copies of the proxy forms submitted at the corporation's 2017 AGM.

Costs
The corporation requests that the Tribunal award it costs of $3,001.85 representing the legal fees it incurred in this matter because the Applicant knew or ought to have known that she was not entitled to receive un-redacted copies of proxy forms so she filed an “unmeritorious” application.

The adjudicator wrote:
"I have no reason to conclude that the application before me was either frivolous or not filed in good faith; the Applicant submitted reasoned arguments asking the Tribunal to apply a broad reading of the legislation. That the application was unsuccessful does not in itself comprise an exceptional reason to award costs. Therefore, I order no costs in this matter."

Order
1.  Metropolitan Toronto Condominium Corporation No. 962 provide Janet Cangiano electronic copies of the proxy forms submitted at its November 16, 2017 Annual General meeting (the “records”) redacted for information that identifies specific units or owners of the corporation.

2. The fee, payable by Ms Cangiano in advance, for the preparation and production of the records shall not exceed $27.60.

3.  Metropolitan Toronto Condominium Corporation No. 962 shall provide the records to Ms Cangiano within 30 days of its receipt of the fee.

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Mara Bossio v. MTCC No. 965
File number:   2017-00047R
Adjudicator: Lai-King Hum
Date Realeased: 06 July 2018

What most condo owners will find interesting in this case is the decision on costs. The condo corporation hired a lawyer and they were unsuccessful in getting any of their costs paid by the owner.
—CondoMadness

Costs
The condo corporation did not seek recovery of any actual Tribunal fees or expenses pursuant to Rule 30.1 of the Tribunal’s Rules. However, based on its written costs submissions, it sought significant legal fees of $6,450.00, representing partial payment of its actual legal costs to deal with this Application, being $10,899.56, inclusive of disbursements and HST.

When costs can be expected
The adjudicator explained when a party at CAT can expect their expenses to be paid:

"There must be “exceptional reasons”, and for that, I must find more than the Applicant not being successful on the Application and taking an unreasonable position. While unsuccessful, the Applicant felt truly aggrieved and believed that she was entitled to insist on the Records so that she could seek remedies by way of mediation and arbitration. Having found that the records fall into the “actual or contemplated litigation” exception, it might in hindsight have been unreasonable for her to have pursued the Application but that by itself is not exceptional.

To find “exceptional reasons”, I would need evidence that the Applicant had been grossly unreasonable, or had taken positions that unduly complicated this Application, or had acted in bad faith or with malice, or took some other step beyond being unsuccessful and unreasonable. I found no such evidence in this case."

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