Law Times

Law Times • January 22, 2018 Page 9 www.lawtimesnews.com Condo tribunal won't award costs to winning litigants BY MARG. BRUINEMAN For Law Times T he new Condominium Authority Tribunal — the province's first of its kind launched last No- vember — is designed to quickly resolve condominium disputes. But the tribunal will not award the cost of lawyers' fees to winning litigants, barring ex- ceptional circumstances. And that may have both a positive and a negative impact for its us- ers, say lawyers. The new tribunal is initially only dealing with records- related disputes. Condo unit owners who are searching for more information, for example, about condo board decisions or someone serving as a director on a board have a place to turn if they're not satisfied with the board's response. The goal was to create a pro- cess that was quick, convenient and affordable for litigants to settle and decide condomini- um-related disputes in Ontario and transform how disputes are resolved, according to the prov- ince's guidelines. James Davidson, a founding member of Davidson Houle Al- len LLP Condominium Law in Ottawa, says the tribunal could add a greater burden upon con- dominium managers. They are already dealing with the gradual rollout of sweeping changes to Ontario's Condominium Act, which have started to come into force. Davidson is concerned that many of the litigants appearing before the tribunal will end up being condominium building managers, most of whom are not trained in legal processes and already are potentially over- stretched, as they work through the many amendments to the Condominium Act. "The rules say that lawyers can represent parties to a dis- pute before the tribunal, but the rules also say it would only be in the rarest of circumstances that the tribunal would award the winning party its costs for legal representation," says Da- vidson. "You could have a lawyer involved, but the cost, in many situations, could be prohibitive." The tribunal, however, can award the fees for the process, up to $200. By removing the risk of a significant cost award, litigants may well find the new tribunal more financially ac- cessible, compared with other courts and tribunals where costs are awarded. "I am a little bit concerned about the increased burden that this could place on condomini- um board members and manag- ers because it could mean that they're going to be dealing with these tribunal processes on their own," says Davidson. "I think this might just be an added pressure because they won't be able to look to their le- gal counsel to assist them, they won't be able to have the possi- bility of recovering those costs back in cases where owners bring disputes that aren't justi- fied," he says. Laura Glithero, a partner at Cohen Highley LLP Lawyers in London, Ont., hopes the tribu- nal will award costs for the ad- ditional issues it is expected to hear. While the tribunal is only responding to records-related issues, it will be dealing with a wider range of disputes in the future. "As the tribunal expands, I would hope that the tribunal board members are given more f lexibility when it comes to costs consequences in order to ensure that innocent unit owners aren't bearing the costs," she says. Costs consequences play an important role in our civil litiga- tion system, she adds, because it encourages the parties to reach reasonable resolutions and it discourages frivolous litigation. Meanwhile, she expects that law firms will continue to help resolve issues people encounter in condominium disputes, be- fore they get to the tribunal. She is currently working with condo boards on records issues to help them determine what informa- tion needs to be disclosed and what is exempted, under the newly revamped Condominium Act. Glithero sees the role of para- legals expanding to assist in con- do-related matters. A paralegal at her firm, Cohen Highley LLP, has been responding to records issues in which the firm's clients — condominium corporations — have become involved. That helps contain the costs for condo corporations, if they're respond- ing to something that can't be resolved at the initial stages. "As lawyers who represent condo corporations, we're going to do our best to make sure those costs are minimized," Glithero says. Davidson's firm in Ottawa is taking a similar approach. "One of the things we're going to be doing here is we're going to [be] training up a paralegal and/ or a junior lawyer to deal with these tribunal processes as inex- pensively as possible, so at least we can offer a service to our cli- ents if they want it," he says. But, inevitably, some of the issues will require the interven- tion of lawyers, says Christopher J. Jag lowitz, a lawyer with Gar- diner Miller Arnold LLP in To- ronto. He expects that in some situations, condo corporations will have to acquire legal help because they have the obligation to protect their organization and ownership. And that's where he sees one of the advantages of the tribunal operating online, in- stead of in a bricks-and-mortar facility. "The condo authority process is intended to be cheaper and simpler," he says. "If I can jump in and out, online in a session, and assist a client in that way, it should be more efficient." Jaglowitz expects the unmer- itorious claims to be weeded out quickly and the tribunal to issue summary decisions for the cases it does look at. The intent is to not have lengthy hearings with discoveries and submissions, he says. At the same time, he sees po- tential to "shape the behaviour" of condo managers who don't understand or respect the pro- cess, so they learn from their experience and don't turn to the tribunal with frivolous claims. This could ultimately reduce the number of disputes, he says. The Condominium Authori- ty Tribunal lays out a three-stage process, allowing those involved in disputes to achieve a resolu- tion at each stage, beginning with negotiating in a neutral forum, followed by mediation, if that is unsuccessful. If there's still no resolution, they can seek a tribunal decision through a formal adjudication. The elimination of cost awards may well provide an in- centive for condo owners to as- sert their rights, Jaglowitz adds. Jaglowitz, who co-chaired the dispute resolution section of the government's working group leading to the Condominium Act changes, says the online model provides a smaller foot- print, which is important. But expenses related to the tribunal's operations are a major factor because the government only provided the seed money for the launch of the new tribunal. It is otherwise intended to be self- funding through Ontario condo unit holders. "I think it's a fantastic idea; it's an idea whose time has come," he says. LT FOCUS Laura Glithero says costs consequences play an important role in the civil litigation system because it encourages the parties to reach reasonable resolutions and it dis- courages frivolous litigation. I am a little bit concerned about the increased burden that this could place on condominium board members and managers because it could mean that they're going to be dealing with these tribunal processes on their own. 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