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Jun 20, 2024
Services: Condominium Law

Appeals & Judicial Reviews of the Condominium Authority Tribunal

Reviewing CAT Decisions:

The Condominium Authority Tribunal (the “CAT”) has exclusive jurisdiction to adjudicate various forms of disputes arising in condominium communities. The CAT’s jurisdiction will likely only continue to grow. While CAT decisions are generally “final and binding,” parties may wish to ‘appeal’ CAT decisions in certain circumstances.

While parties are not entitled to overturn a CAT decision simply because they are not satisfied with the result, there are two mechanisms whereby the Ontario Courts may review CAT decisions:

(1) The Statutory Appeal Mechanism:

The Condominium Act, 1998 empowers parties to appeal a “final order” of the CAT to the Ontario Divisional Court on ‘questions of law:’ e.g., where a party alleges that the CAT misinterpreted a provision of the Condominium Act, 1998 in making its decision, or where a party alleges a breach of procedural fairness. Unlike statutory appeals from certain other tribunals (e.g., the Ontario Land Tribunal), statutory appeals from the CAT can be launched without ‘leave’ (i.e., permission) from the Divisional Court.

(2) The Judicial Review Mechanism:

While the Condominium Act, 1998 grants a statutory right of appeal from ‘final orders’ of the CAT in relation to ‘questions of law,’ it is silent in all other circumstances, including, for instance, where a party alleges that the CAT made an error in relation to a question of fact, or mixed fact and law.

Fortunately, in circumstances where there is no statutory right of appeal, the Judicial Review Procedure Act continues most of the residual discretion of the Ontario Courts (generally, the Divisional Court) to ‘judicially review’ decisions of Ontario tribunals (among other decision-makers deriving their authority from provincial statute or prerogative).

On judicial review, the Court has jurisdiction to issue certain relief, including orders ‘quashing’ (i.e., setting aside) CAT orders predicated on errors of fact or mixed fact and law. If a CAT order is set aside, the Court has wide discretion in fashioning the appropriate remedy. However, to respect the intent of the Condominium Act, 1998 in granting the CAT authority to hear certain forms of disputes, the Court will likely often a send the matter back to the CAT for a fresh hearing by a different Adjudicator if they opt to set aside the CAT decision on judicial review.

While Ontario Courts were formerly reluctant to entertain judicial review applications where there was a limited right of statutory appeal — e.g., where there was a statutory right of appeal in relation to questions of law, but no statutory right of appeal in relation to questions of fact or mixed fact and law — this is no longer the case. Namely, given a recent decision from the Supreme Court of Canada (2024) in Yatar v. TD Insurance Meloche Monnex, , 2024 SCC 8 (CanLII), Courts are longer entitled to decline to exercise their judicial review discretion simply because there is a limited right of appeal. Importantly, however, Yatar re-confirms the discretionary nature of judicial review: i.e., as has been the case for centuries, Courts are still entitled to withhold judicial review if they determine that such is not appropriate in the circumstances.

Joint Statutory Appeal & Judicial Review Proceedings:

While the law is now clear that parties may commence statutory appeal and judicial review proceedings in relation to CAT decisions, what happens when a party believes that the CAT has both: (i) committed an error of law; and (ii) committed an error of fact or mixed fact and law?

As recently explained by the Divisional Court (2024) in Casa Loma Residents Association v. 555 Davenport Holdings Ltd., 2024 ONSC 2297 (CanLII), where a statutory appeal (without leave) and a judicial review proceeding both lie from the same decision, it is likely to be most efficient to hear both proceedings together.

Appellate and judicial review litigation is highly complex. While the above provides an overview of statutory appeal and judicial review proceedings in the context of the CAT, it by no means canvasses all aspects of the law. Given tight timelines to commence statutory appeal and judicial review proceedings, you are encouraged to contact a lawyer immediately if you wish to appeal and/or judicially review a CAT decision. SV Law has numerous lawyers experienced in conducting condominium, statutory appeal, and judicial review litigation.

Related Team

Jamie F. Cockburn

The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.