October 2022
Introduction
Since its inception in 2018, the Condominium Authority Tribunal (“CAT”) has gained a reputation as a pro-Unit Owner institution. Is this reputation justified? Our firm ran the numbers, and the answer is more nuanced than expected.
Looking at the Raw Numbers
As of end of September 2022, the CAT has 344 reported decisions. Our firm looked at each and classified them as (i) favourable for the condo; (ii) favourable for the unit owner; (iii) a mixed decision; or (iv) a procedural / consent order. For simplicity, we will only look at the cases that are clearly favourable for one side or the other.
The results: 123 decisions favour the condo, and 126 favour the unit owner. It is a near even split. Things get more interesting, though, when broken down further.
The Records Era
From its inception until October 1, 2020, the CAT only dealt with records disputes. In its first year the results were fairly even, but they became increasingly one-sided. Unit owners ended up winning 64% of cases in this Records Era, which includes nearly 80% of cases in 2020.
At first glance, this certainly reinforces the impression that the CAT favours unit owners. There may be an alternative explanation, though: perhaps only non-compliant condos are being taken to the CAT. That is, the condos that follow the proper record-keeping protocols never end up in the CAT because there are no angry unit owners to file complaints. As such, there may be an inherent selection bias at play, or perhaps there is just a strong presumption when it comes to records. Either way, a records complaint that ends up in the CAT may likely favour the unit owner.
The Enforcement Era
On October 1, 2020, the CAT’s jurisdiction expanded to include pet, parking and vehicle disputes, and it expanded further January 1, 2022 to include various nuisances. Not surprisingly, this sparked an explosion of cases: the CAT made more decisions in the first quarter of 2022 than it did in all of 2018 or 2019.
In the first half of the enforcement era, unit owners won 55% of cases. Since the further expansion in 2022, condos have won more decisions, sitting at 62%. When looking at all cases since October 1, 2022, with both records and enforcement, condos have a slight lead at 54%.
In other words, condos have benefitted from the CAT’s expansion into enforcement. The CAT is both hearing more cases and deciding them more often for condos, and there appears to be a presumption favouring the condo in enforcement matters. The question becomes, is this a permanent change, or will the pendulum eventually swing back the other way?
Limitations, or Why 50% Feels Like Losing
These numbers, though revealing, are still limited. For example, it does not factor in scale: a small win and a large win both count the same. Nor do these numbers factor in subject-matter, procedural motions or the reasoning in the decision. All of this needs further investigation.
Most importantly, there is a distinction between winning the case and being awarded costs for that case. Often, the condo wins but the CAT declines to award costs. Sometimes the unit owner will fail but still get awarded their filing costs. And sometimes the condo loses and gets hit with a $5,000 penalty.
Our expectations also play a role. A condo would only bring an enforcement matter to the CAT if it expected it would win. This is in stark contrast to the 54% reality. Winning more often but still less than expected dampens the mood.
Finally, since 2019 there have been an increase in the number of “abandoned” claims, where owners file the initial complaint but never follow-up. A condo can never lose against an abandoned claim, but they can lose the time and effort needed to respond to it in the first place. As costs rarely follow abandoned claims, these are victories in name only.
Bottom Line
Rightly or wrongly, the CAT has a reputation for favouring unit owners, but the all-time data shows a near 50/50 split, and condos have done increasingly well in the enforcement era. It remains to be seen whether this is a permanent change in trajectory or a pendulum that will swing back. While no one should relish a CAT hearing, the data shows it is not as pro-unit owner as its reputation may suggest.
Written by Jonathan Pettit, edited by Robert Mullin, Christopher Mendes and Fiona Burnett.
*This article does not constitute legal advice, always consult legal counsel.
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.