In the recent CAT decision, Mermut v. York Region Standard Condominium Corporation No. 1381 et al. (“Mermut”), CAT highlights the importance of diligently participating in applications and abiding by the deadlines imposed by its members. It also serves as a reminder to condo corporations of their obligation to adequately investigate and try to resolve unit-to-unit disputes.
In Mermut, the applicant owner brought an application against its condo, York Region Standard Condominium Corporation No. 1381 (“YRSCC 1381”), another unit owner (“Dhir”), and the resident residing in Dhir’s unit (“Hasani”) with respect to noise allegations.
The applicant owner was ultimately successful in obtaining an order against YRSCC 1381, Dhir, and Hasani, including cost awards against all three respondents.
Part of the reasons for the cost awards pertained to the lack of participation or failure to abide by CAT’s deadlines imposed.
CAT’s Rule 48.2, provides:
The CAT generally will not order one Party to reimburse another Party for legal fees or disbursements (“costs”) incurred in the course of the proceeding. However, where appropriate, the CAT may order a Party to pay to another Party all or part of their costs, including costs that were directly related to a Party’s behavior that was unreasonable, undertaken for an improper purpose, or that caused a delay or additional expense.
CAT also has a practice direction with specific considerations when determining a costs award, including:
- whether a party’s conduct was unreasonable, for an improper purpose, or caused a delay or expense;
- the conduct of all parties and representatives requesting costs;
- the potential impact an order for costs would have on the parties;
- whether the parties attempted to resolve the issues in dispute before the CAT case was filed;
- the provisions of the condominium corporation’s declaration, by-laws and rules, including whether the parties had a clear understanding of their respective requirements and/or the potential consequences for contravening them; and
- whether the costs are reasonable and were reasonably incurred.
In Mermut, the CAT member noted that YRSCC 1381 missed deadlines and ignored several messages and requests for submissions, including filing late submissions. The CAT member noted that although this did not cause significant delays, it did cause the other parties to incur additional legal fees responding to the late filing of evidence and procedural issues.
Another factor CAT considered was that YRSCC 1381 “stepped out” of the dispute and told the other parties that they had to deal with the matter between themselves.
CAT found the above noted conduct to unnecessarily contribute to the amount of legal fees incurred by both the Applicant and Dhir. CAT ordered YRSCC 1381 to reimburse the Applicant $7,438.80 of its legal fees.
Dhir was also ordered to reimburse the Applicant $2,479.60 in legal fees as Dhir seemingly refused to attend any meetings to try to work towards a solution prior to the application.
Hasani did not participate in the proceeding and was also ordered to reimburse the Applicant $2,479.60 in legal fees.
This is a strong reminder that parties must meaningfully participate in applications before CAT and must adhere to the deadlines imposed.
For condo corporations, Mermut emphasizes that condo corporations have a responsibility to ensure that unit owners and residents comply with the Act and its governing documents. Condos are not permitted to “step out” of issues because they take the position that the complaints are frivolous or that someone may be overly sensitive to noise. Condos have a duty to adequately investigate complaints and work towards a resolution.
