choosing to use paralegals or lawyers to represent them. This most recent expansion is intended to cover “ unreasonable nuisances, annoyances, or disruptions ”. Those within the industry know and appreciate that some nuisances, annoyances, or disruptions are reasonable (and even necessary) within a condominium community. The CAT ’ s job will be to assess whether the nuisances, annoyances, or disruptions complained of are unreasonable. This will often require the assessment of witness credibility, which presents challenges in an online dispute resolution platform, especially if the evidence is presented entirely in writing. Another concern with this new expanded jurisdiction is that issues like noise, vibrations, smoke, etc. often require the involvement of experts (such as engineers or other contractors) to assess the source or cause of the concern, and whether the issue being complained about violates relevant laws, guidelines, or professional standards. For that expert ’ s evidence to be relied on in a legal proceeding, including in a CAT hearing, an official expert report must be prepared. Both the initial assessment and the official report can be quite costly, and the legal and practical issues to be argued can be very complex. These are not matters where a Board member or property manager can or should be expected to act on behalf of the condominium corporation, or an owner to act on their behalf. This complexity, and the increased need for legal representation in CAT matters, is particularly concerning given that section 46.1 of the CAT ’ s current Rules of Procedure state that “ The CAT will not order a User to pay to another User any fees charged by that User ’ s lawyer or paralegal, unless there are exceptional reasons to do so. ” The CAT ’ s decisions to date support the idea that the CAT will only award legal fees in exceptional circumstances. Even where those circumstances are found, the CAT may not order the condo ’ s full legal costs. This means that in many cases, condominium corporations will end incurring legal fees with little to no recovery, even if they are successful in their CAT matter. If your condominium is experiencing concerns with a matter that would fall under this expanded jurisdiction, we would encourage you to reach out to your legal
counsel to discuss your options. As always, our office is available to work with you to navigate the concerns and determine the best way forward for your condominium community.
- SS
CCI Review 2021/2022 —November 2021 - 18
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