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Condominium lawyers are waiting to see how the jurisdiction of the online Condominium Authority Tribunal expands, while mediators say online dispute resolution will become more common.

The tribunal is tasked with settling records disputes under s. 55 of the Condominium Act, its website explains. The tribunal was launched in November 2017, calling itself “Canada’s first fully online tribunal.” All parts of a dispute — from filing a claim to negotiating a dispute to mediating an agreement and receiving a decision from the tribunal — can occur online, the tribunal says.  

Laura Glithero, a partner at Cohen Highley LLP Lawyers in London, Ont., says the online tribunal offers a cost-effective way to settle disputes.

“More and more, we’re seeing unit owners demanding transparency from their corporation,” she says. “I think that there is a need for more access to justice for unit owners and condominium corporations that is more cost effective and efficient than the current process.”

Christopher Jaglowitz, a lawyer with Gardiner Miller Arnold LLP in Toronto, says he was “rooting” for the tribunal’s creation, saying that Small Claims Court is not an appropriate venue for handling records disputes.

“I think it’s fantastic that they’re an entirely online tribunal,” he says.

“It’s an incredible waste for lawyers or for condo directors or managers or unit owners to be standing in a hall of some courthouse someplace or in a tribunal office waiting for a hearing where most of these disputes can be solved with the records and relatively light verbal testimony. The online platform is much better and it allows people to participate in those dispute processes at home, after hours and from any location in a much more convenient way.”

As of late August, seven of the tribunal’s decisions had been posted on CanLii. These decisions cover a variety of issues, including redacted records, proxy records and whether claims can be considered vexatious.

“It’s interesting to see the tribunal wrestle with those issues at an early stage of its existence,” says Glithero.

The tribunal’s jurisdiction could expand to other areas besides record disputes, says Jaglowitz. “Records was a really good place to start,” he says. It allows the tribunal to work out technical difficulties before moving to more complex matters.

While using the tribunal may be relatively easy for unit owners, responding to complaints can be time-consuming for condo board corporations, says Cheryll Wood, an associate with Davidson Houle Allen LLP Condominium Law in Ottawa.

“Going through a tribunal process puts a lot of added time and stress on board members because they’re the ones representing the corporation through the process,” she says, noting that board members are volunteers and that the board may not be able to recover any of its legal fees.

“As the jurisdiction of the tribunal increases, it will also increase the burden on the board and possible costs for the board and owner with likely no chance of recovering the costs,” says Wood.

The tribunal also has the potential to reduce the number and cost of future disputes, says Jaglowitz.

“[The goal of the] condo authority and the CAT was to help avoid a lot of these disputes from happening in the first place by providing condo boards and condo managers with information about what their rights and responsibilities are,” he says. “The main goal is to avoid the disputes by giving people the information they need in order to do what needs to be done. But if there’s going to be a dispute, there’s at least a relatively cheap and easy process for unit owners to get a ruling about whether or not they’re entitled to any particular record.”

Keegan Ferreira, the deputy registrar and director of tribunal operations for the CAT, says that when an applicant files a complaint in the system, they also need to propose a solution. That is considered a first offer, which the respondent can choose to accept or reject, he says.

“We have some cases last as little as 10 minutes, and no one needed to appear in a courtroom or travel,” says Ferreira.

The tribunal plans to develop during the next year and a half and is looking at how to incorporate teleconferencing into the process in a more seamless way, he says. In the future, the tribunal may hear other cases, not just those involving condo records.

Ferreira, who has worked on various government tribunals for more than a decade, says he can’t think of a situation where online dispute resolution wouldn’t be helpful. The idea that more complex situations can’t be handled online because they need more complex systems is false, he says.

“The system can still be straightforward and can still be doing a lot of the work for you; for instance, organizing all of the documents in chronological order,” he says. “The simplicity of a system can actually help reduce the complexity of a case.”

People expect their government services to be accessible online, Ferreira says.

“We really wanted to build a system for the future.”

Jaglowitz says the tribunal is not created to hear every kind of condo dispute.

The government has said the tribunal is not to hear condo lien cases, he says.

“[The tribunal’s] not really intended for disputes with developers to go to the CAT,” Jaglowitz says. “That’s an important enough process where you want to use the tried-and-true methods like arbitration or court. The CAT isn’t for everything.”

Online dispute resolution is going to become more popular, says Colm Brannigan, a chartered mediator with Brannigan ADR in Brampton, Ont., who has been writing about online dispute resolution since the early 2000s.

“A couple of years ago, there was interest in online dispute resolution but not any movement toward it,” he says. “I think that the condo tribunal will push that further. It has the potential to be disruptive but also transformative as well, because it opens up access to conflict management and dispute resolution to many people who won’t be able to use it for one reason or another.”

Brannigan, along with Rick Weiler, an Ottawa-based mediator, is chairing an ADR Institute of Canada task force that will be examining how online technologies are being used in alternative dispute resolution.

“What’s really made the difference has been the government and legal justice services coming and starting to use the technology,” says Brannigan.

Ontario isn’t the only province bringing more dispute resolution online. In British Columbia, the Civil Resolution Tribunal allows users to file small claims of up to $5,000 and condominium property disputes of any amount online, the tribunal’s website says. It launched in 2016. Next April, its jurisdiction will also include some motor vehicle personal injury disputes, the tribunal’s blog says. But there are still some off-line components of the tribunal, says Brannigan, such as the option to have an in-person hearing.

While it’s unclear what other dispute resolutions will move online, the CAT is filling a pressing need, Jaglowitz says.

“The current scenario of how we enforce condo rules is not that terribly efficient and isn’t a very user-friendly process,” he says.

“There’s probably enough condo disputes out there in Ontario that I think it will provide some relief to the justice system to have a lot of those disputes dealt with through CAT.”

Source: LawTimesNews