Not legal advice, as always.

ONCAT Ontario's Condominium Authority Tribunal, is arguably like a piano player in a whore house.

Pursuing its still limited mandate - platforming or delivering outcomes in records-withholding condo disputes - however it sometimes ( accidentally ) "opens the curtains". Only the most naive would be much surprised. But directly sanctioning other grounds of Condominium Act 1998 violations it happens upon, has been treated as NOT its function.

About such jurisdiction-limited disputes at a Mississauga highrise SW of Hurontario & Burnhamthorpe West, a pair of just-issued ONCAT adjudications arrive after online dispute resolution activity was initially launched in September 2019. They just slip in by online ADR past COVID-19.

They result in Peel C.C. # 389 being penalized by twin Orders & nominal "penalties" of merely the $ 5 K maximum and $1.5 K.

The ONCAT adjudicator imposed such for what is held to have been records-denial contrary to the entitlements of owners under Ontario's Condominium Act 1998.

Amongst others it indirectly addressed FIVE YEARS of failures to hold AGMs ! And actual ceasing to hold date-specific BOARD MEETINGS !

ONCAT heard the current President ( as PCC # 389's 'agent' ) argue that because such Board Meetings were no longer held, there are NO RECORDS to arguably entitle a records requester to examine or copy ! Nor for ONCAT to order disclosure.

And as to the Applicant's defied records requests for management agreement at the 20 or 22 story highrise, ( ? 500 units ? ) from that same President was tortuously dragged a reversal of her claims or defences ( see below ).

1 - "Self management" allegedly by the President's PMC - past or present ? - argued NOT A DISCLOSURABLE RECORD !

From the President was tortuously dragged the admission that there HAD BEEN - past tense - a management relationship in place with a management company called MANIFOLD PRO. Such had been denied.

The President is cited by the ONCAT adjudicator to have allegedly been the President of such management company which she also now morphed to claiming is NO LONGER MANAGING the highrise.

ONCAT orders any such withheld contract(s) nevertheless disgorged & imposes its maximum $ 5 K penalty arguably a paltry sum.

( ONCAT addresses below whatever the present day management status if any at this highrise. The Condominium Management Regulatory Authority of Ontario CMRAO website has a general mandate to address licence compliancing activity where any is underway anywhere ) .

( Having managed professionally between retirements & now living in what genuinely is a self-managed Building Scheme, I gotta say that the term "self-managed" erected by the President, respectfully looks less than appropriate at this highrise. )

2 - "Self-managed" ( the condo President claims ! ) means ( for years prior to COVID 19 ) NO date-specific BOARD MEETINGS & thus means NO MINUTES theoretically available for any records requester to examine or copy ! Nor eligible therefore to be held a records withholding offence !

She continued with the bizarre claim that self-management is some sort of a continuous or amorphous process not capable of being formally convened ! ( Could the Board be lawfully convened & quorumed for all operating hours every workday ? No rest for the weary ? Who would want to serve on such a Board ? )

Was ? is her PMC getting paid ? Are other Directors ? Whatever the governance documents might or might not state, section 56(2) of Ontario's Condominium Act 1998 arguably requires that Director remuneration arguably still requires a formal BY-LAW with a three year maximum.

The condo management licensing eligibility criteria pointedly address that revenues earned by Directors could disqualify from exemption of licensing. ( Arguably a by-lawed formal dinner for example might be well-earned & exempt, but even by-lawed fees for services might trigger an obligation to formally register as a service provider. )

1st : Mehta v P.C.C. # 389 ( 2020) ONCAT 9 issued April 7 /20 http://canlii.ca/t/j6dk8

2nd : Mehta v P.C.C. # 389 ( 2020) ONCAT 10 issued April 13/20 http://canlii.ca/t/j6fvk

More to come ( addendum : see Mr Mehta's 3rd Order below Sep 16/20 ) . . . .

Not legal advice.

1 - This latest pair of ONCAT adjudications ( Mehta v PCC # 389 ) seems to apply a difference in principle from a 2019 outcome where Board Minutes actually existed albeit conceivably evidencing non-concurrent Board transacting . ( Yeung v MTCC # 1136 )

In the 2019 outcome, Board Minutes effectively treated as a 'fait accompli', what was cited as a decision already reached by E-mail ie conceivably also as non-concurrent Board transacting lacking a Minuted existence & possibly even genuine legality.

So in 2019 the contract record sought BUT NOT GRANTED, was held exempt as NOT capable of being disclosurable. The non-Minuted agreement was treated as a non-existent product of what possibly MIGHT - or MIGHT NOT - have been an unlawful NON-CONCURRENT Board transactioning. Yeung v MTCC # 1136 2019 ONCAT 11 was a cafcor item :

“NON –CONCURRENT BOARD TRANSACTING : “Catch 22 dilemma at Tribunal for records requester” https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18968&catid=9

2 - BUT two recent Mehta outcomeS imply that Ontario condo records access rights - and the jurisdiction of ONCAT itself - really are remedially derived from a higher or broader Legislative intent. That's an intent to force condo corporations to physically compile & later make available the legislated and/or prescribed RECORDS.

That refusing or failing to compile & disclose disclosurable records, is itself directly addressed by ONCAT's jurisdiction.

And that such widens a scope for a record requester's right to a remedy beyond what is suggested by the 2019 outcome.

That is : that an Ontario condo corporation's FAILURE TO RECORD - whether true or not - MAY itself be a records denial offence within the mandate of ONCAT to remedy !

In other words, that 'WE DID NOT RECORD', itself COULD BE TREATED as an ONCAT-actionable denial of disclosurable non-exempt condo records.

This appears to express a wider view of ONCAT's powers than what appears to be built into the 2019 Catch 22 Yeung scenario above. As evidenced by the $ 200 award to the losing 2019 applicant, however the adjudicator may have had some very valid concern about the 'we did not record the approval' defence allowed to shield the E-mail approval . . .

3 - xcrpt from Mehta v P.C.C. # 389 ( 2020) ONCAT 9 issued April 7 /20 http://canlii.ca/t/j6dk8

" . . . [10] None of the records requested by Mr. Mehta should have given the Corporation pause when considering entitlement as they are all listed in s. 55 (1) of the Act and Reg 48/01 as records the corporation is required to maintain, and no exceptions as per s. 55 (4) apply.

Some of the records requested, such as the Board meeting minutes may have been subject to redaction, but as set out below, these records do not exist.

In not providing the records, PCC 389 has refused Mr. Mehta records to which he is entitled.

Issue 2 - Has the Corporation provided a reasonable excuse for not providing the record ?

. . . [21] PCC 389 submits that it is a ‘self-managed’ corporation and because of this, no formal Board meetings are held as the Directors deal with corporation business every day.

In her testimony on behalf of PCC 389, Ms. XXX states, “this is a self-managed corporation and as such the board deals with the affairs of the corporation on a regular basis could be daily.” She further notes on examination that:

“given the involvement of the board in the day to day affairs of the corporation, in this self-managed model, it is not possible to be taking meeting minutes on a daily basis as everything and anything can be discussed or talked about or handled during the get together of the board members.

Similarly to when you have a management company that deals with the affairs of the corporation on a daily basis, and no one expects the manager or the administrator to take daily minutes.”

[22] A determination of the appropriateness of the Board’s approach to governance of the condominium is outside the current jurisdiction of the Tribunal.

. . . . [26] Although, again, I make no determination here regarding the appropriateness of the manner in which the board conducts the business of the corporation, I do note that Ms. XXX's evidence is that the board is conducting the business of the corporation. Therefore, as per s. 32 (1), there need to be meetings of the board in some form or fashion, and the minutes of these meetings are required to be maintained in order for the corporation to satisfy the minimum standard for adequate record keeping that is set out in the Act and Regulations.


[27] Even if it is the case that no board meetings are being held (and, again, it is outside of the jurisdiction of this Tribunal at this time to determine what impact that has on the validity of board activity), it is clear that the Act requires there to be board meetings.

Of course, not holding board meetings would render it impossible to have minutes of those meetings, however, I cannot treat a clear failure or refusal to comply with the Act as a reasonable excuse for not providing the requested records.

I therefore must deem and determine that the non-existence of such records is a refusal without reasonable excuse.

[28] Minutes from the Annual General Meetings (“AGM”) for 2014 – 2019.

The evidence before me is that no AGM’s have taken place since 2014, which was, according to Ms. XXX , when the corporation became ‘self-managed.’

Since there have been no meetings, there are no minutes .


[29] Again, whether or not PCC 389 is governing itself in accordance with the Act, is beyond what I can decide, and I cannot order PCC 389 to produce something that does not exist.

However, a determination of the adequacy of record keeping is not.

The responsibility to keep adequate records under the Act applies to all corporations. The Act does not outline any exceptions or exemptions for corporations that are self-managed.
. . .

[37] Agreements that PCC389 has or has had with any condominium management service company, for the period of September 2018-September 2019.

Throughout the hearing, PCC 389 took the position it is a self-managed corporation and thus does not have agreements with any condominium management company.


This position was reinforced in Ms. XXX’s testimony where she states,

“I am also testifying that PCC 389, self-managed corporation, does not have an agreement with any entity to receive property management services.”

However, on cross-examination, Ms. XXX admitted that the management company “Manifold” had been appointed by the Board to “keep the office open and manage day to day items.”

This clearly contradicts her earlier testimony.

It was further revealed during cross-examination that Manifold is owned by Ms. XXX . . . ." - unquote

There are other important aspects of this tribunal outcome, no matter how limited are ONCAT's current powers to address some of the accountability remedies to which the Legislature has directed it . . . .

Commented by ONCAT : the records deniers' unilateral purporting to override cancel Mehta’s legislated right to records access, alleging harassment or whatever. Even had counsel send a 'desist letter ! ". ONCAT notes exchanges can occur online / not in person ! Did they also lien his unit for that letter ? Or threaten to do so ?

Not legal advice of course

Mr. Mehta had DARED TO REQUEST legislated access to record(s) about whatever if any contractual arrangement may exist or may have ( past tense ) once existed between his condo corporation and a ( Federally incorporated ) management /consulting company.

The corporation's representative in the ONCAT process / President, is shown online as the sole Director of a particular Federally incorporated company.

Generally - of course without any reference at all to the above scenario - there are some complexities, remembering that all may be lawfully compliant until established otherwise. Mixing condo Board governance & remuneration is easy to attract criticism.

Consider

1 - By condo by-law Ontario's Condominium Act 1998 empowers remuneration of Directors under section 56 ( 1) d. But that's for a duration not exceeding three years and approved including by one owner vote more than an even 50 % of the total present or proxied. section 56 (2)

Not numerically easy. Nor necessarily the best optics even though Directors duties can be difficult.

2 - Also by by-law OFFICERS - a mere non-Director President for example if any exist - however can be remunerated under a conventional by-law apparently without a 3 year limit introduced in 2001. 56 ( 1 )

Officers theoretically might not be owners but can suck up LOTS of abuse, expense & lost time. How many Board Presidents are not also Directors & owners ? . . .

3 - PMC Licensing in Ontario

Ontario's CMRAO The Condominium Management Regulatory Authority of Ontario, is a licensing regime set up to administer the Condominium Management Services Act 2015 , S.O. 2015, c. 28, Sched. 2 https://www.ontario.ca/laws/statute/15c28

( CMRAO's website incidentally shows organizations & individuals against which from time to time it has pursued alleged provision of allegedly unlicensed condo management services. Those allegation would be totally unproven until adjudicated otherwise. )

A Regulation prescribed under that Act ( O.Reg 123/17 GENERAL https://www.ontario.ca/laws/regulation/170123 ) shows "Exemptions From Licensing" - section 2.

Those exempted from requiring a CMRAO condo management licenCe are prescribed to include :

" . . . 14. A person who is elected or appointed as a director of a condominium corporation under the Condominium Act, 1998, including a director who receives compensation pursuant to a by-law made under clause 56 (1) (a) of that Act, unless the person is providing condominium management services for compensation or reward or the expectation of such.

15. A person who is elected or appointed as an officer of a condominium corporation under the Condominium Act, 1998, including an officer who receives compensation pursuant to a by-law made under clause 56 (1) (d) of that Act, unless the person is providing condominium management services for compensation or reward or the expectation of such. . . ." - unquote

Bottom line may be : Mr. Mehta had some questions, and might even have found everything perfectly compliant if his substantiated requests had been actioned upfront . . .

Even merely at a tribunal there are scenarios respectfully best served or avoided by using insured, L.S.O.-licensed lawyers or paralegals.

Those professional skills might eventually come in handy for Board members even innocently & Act-compliantly mixing Board service with some sort of paid professional remuneration.

( again not legal advice ) "but wait . . . there's more !

Another owner at P.C.C. # 389 obtains from a different ONCAT Tribunal adjudicator on April 29/20, a Tribunal Order for disgorgement of the corporation's Owners & Lenders list as withheld from him.

The adjudicator imposes a mere $ 500 penalty plus $ 200 costs, albeit not inconsistent with such remedies in earlier adjudications.

One reads, respectfully, some gobsmacking grounds erected by this President, for denying an owner/requester a core record required maintained by Subsection 46 ( 3) of Ontario’s current Condominium Act 1998 S.O. 1998 c.19 https://www.ontario.ca/laws/statute/98c19 .

( The list has for several years been also ruled & is now-prescribed, a compulsory disclosure, with a bar to management gate-keeping in the prescribed request form & O.Reg 48/01 General http://canlii.ca/t/5450g. It's e-mails that are not disclosurable as of right unless expressly consented by owners & lenders. )

Recited are her defences that are, respectfully, breathtaking in what they demonstrate.

( including that this President's condo corporation has some sort of power to discern a requester's intent and power to override the revised Act. Act revisions had targetted that historic & notorious obstruction where invalid.

And that despite the legislated & prescribed status of whatever specific disclosure rights, it's trumped by the Federal PIPEDA legislation . . . . )

And again President XXX is cited to have simply abandoned an underway ODR process that continued along . . .

Looking ahead :

If - IF - operating without counsel will her condo corp defy the Tribunal rulings & meager penalties ? As in : open the door to contempt rulings in subsequent proceedings ?

Naqvi v P.C.C. # 389 ( 2020) ONCAT 11 issued April 29/20 http://canlii.ca/t/j6wbg

Again not legal advice.

Sep 16/20 : Halfway through the 2nd of at least 3 outings by requester Mehta at his allegedly "self-managed" condo corporation, the respondent condo corporation & its President-agent simply walked away for good from the ONCAT process.

Months later amidst covid 19 ( Mr. Mehta )’s further apparently again un-actioned mildly variant request, is again undefended.

BUT Sep 2020 this time ONCAT awards requester Mr Mehta only $ 200, chastises him for a variant request. It cites what he is said to know already :

- that enforcing a defied ONCAT Order has to be pursued through ONSC or its Small Claims division.

- and also that ONCAT is not - or not yet - the forum for fighting alleged mis-governance. ( note that ONCAT's jurisdiction was announced to mildly widen Oct 1/20 )


And bottom line Mr. Mehta reportedly still has not received the ( ? voodoo ? self- ) management agreement .

Elsewhere :

- Divisional Court to hear different condo corp’s appeal of an ONCAT decision (Gale) - https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=19105&catid=2

- Superior Court did issue a section 134 Compliance Order to enforce an Order obtained by Therani Holdings but awarded only partial costs. ( “Tribunal defiers eventually complied but hit by Compliance Order & costs THARANI v MTCC # 812” https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=9&id=19031#19031 )


* * * Mehta # 3 Sep 16/20 xcrpt

“ . . . . ..[10] As noted above, several of Mr. Mehta’s records requests have previously been addressed by this Tribunal.

At various points in his submissions, Mr. Mehta argued that PCC 389 had not complied with orders issued by CAT that deal with those requests. He submits that they have not provided him with the records that he is entitled to. At times he pointed to this as a reason for his current requests.

While Mr. Mehta may rightly be frustrated if he has not received the records, bringing issues to the Tribunal that have already been decided will not change this fact.

The Tribunal cannot assist users in enforcing an order from a previous case.

It is enforced though either Small Claims Court or the Superior Court of Justice, a fact that Mr. Mehta is clearly aware of based on his submissions.

Making these duplicate requests has only served to unnecessarily complicate this case and consume the Tribunal’s time and resources. This conduct is not encouraged.

[11] At various points in the hearing, Mr. Mehta also raised issues regarding the honesty and transparency of the Board, improper condominium governance and management and made allegations of fiscal impropriety against the Board. He also provided evidence that he believes supports these claims.
These allegations and issues have been raised in each of Mr. Mehta’s previous cases and, as was noted in those cases, these issues are beyond the jurisdiction of the Tribunal.

Mr. Mehta’s continued attempt to have these issues addressed at this Tribunal is, again, behavior that cannot be encouraged.

Nonetheless, I have reviewed all of the evidence provided to me. I will only address the evidence relevant to the records issues before me. . . .” – unquote

Mehta v P.C.C. # 389 ( 2020) ONCAT 32 issued Sep 16/20 http://canlii.ca/t/j9nm4