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#19294
TRIBUNAL discreetly samples whether to get FULL POWER to award LEGAL COSTS ?deadline MON Nov 15 2021 2021/11/13 11:37  
An Ottawa condo law firm has just ( November 11/21 ) alerted to what appears to be an undated CAO Condominium Authority of Ontario online survey.

( Better move quickly if you want to be heard. That's if such apparent 'quickies' genuinely are read by anyone . . . )

The apparently UNDATED ( ! ! ) online CAO survey is DEADLINED Monday November 15, 2021 !

Arguably consistent with expanding the ONCAT Tribunal's jurisdiction into more "disputable" facts & law next January, the imminent deadline online survey provides this backgrounder :


quote : " . . . . For background about the CAT’s Rules regarding costs and legal fees, please note that: -

The CAT is subject to the Statutory Powers Procedure Act (SPPA).

Accordingly, as set out under section 17.1 of the SPPA, the CAT cannot order a party to pay costs unless their course of conduct has been unreasonable, frivolous, vexatious, or they have acted in bad faith;

-The CAT is also aware that there are decisions from the courts in which the courts have ruled that it is not fair or equitable for all unit owners to bear the costs associated with enforcing compliance by an individual unit owner.

-Likewise, the CAT is mindful of the fact that it would not be fair for individual unit owners to bear costs resulting from unreasonable behavior by condominium corporation boards and managers." unquote

The legal article : Nov 11 2021 DHA Davidson Houle Allen LLP "Potential Changes to the CAT’s Jurisdiction Could Include Legal Fees" https://dhacondolaw.ca/condo-law-news/potential-changes-to-the-cats-jurisdiction-could-include- legal-fees/

The apparently UNDATED ( ! ) portal to the CAO survey : https://www.condoauthorityontario.ca/tribunal/cat-rules-policies-and-guides/provide-your-input-on- the-cats-rules-of-practice/

The survey page itself : https://customervoice.microsoft.com/Pages/ResponsePage.aspx? id=HlJXu40q4EKMt442x5kaIzmZJwxfOg9AkukKIxyr14JUQklXVjRTS1BCVFVJVkw2Mk9YRFpJV1k1Mi4u

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earlier status at January 2018 :

Jan 22/18 Law Times “Condo tribunal won’t award costs to winning litigants” by Marg Bruineman http://www.lawtimesnews.com/author/marg-bruineman/condo-tribunal-wont-award-costs-to-winning- litigants-15218/
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#19295
Whether ONCAT adjudicators should get FULL POWER to award LEGAL COSTS ? 2021/11/13 18:11  
not legal advice, as usual.

1 - ONCAT adjudicators imposing legal costs for LESS THAN vexatious , frivolous etc ( " unreasonable, frivolous, vexatious, or they have acted in bad faith" ) is ON BALANCE an undesirable further unbalancing of the dynamics of many condo disputes.

There's frequently already a severe imbalance, arguably what triggers or aggravates some disputes over mis-governance.

Just look at some ONCAT outcomes so far that have confirmed exactly that.

One can see even less reason for extending such awards, given that ONCAT adjudicators would appear to ALREADY have SPPA authority to punish "unreasonable, frivolous, vexatious, or they have acted in bad faith" etc.

2 - A further disturbing development is that some ONCAT adjudicators already are looking at / citing voodoo site-specific documents to justify charge-backs - NOT expressly platformed within the Condominium Act 1998.

3 - So it's disturbing - but ? not surprising ? - that this quicky questionnaire leaves it to a participant to suggest other relevant parameters.

Such leaves out a biggy : that the Condo Act 1998 itself should expressly be the limit what legal costs are recoverable by either disputant including at ONCAT. eg sections 92, 98, 105, 134 not potentially voodoo Declarations etc

Ominously in repeatedly presenting "Innocent Condo Owners shouldn't pay for jerks", the ONCAT's "Backgrounder" fails to cite corresponding judicial findings of unlawful liening & voodoo charge-backs by governancers.

= a less than balanced rationale by whoever wrote the Survey's "Backgrounder". Or just ignorance. !

4 - And yes : the chance to recover legal costs for mere ignorance would clearly tempt Boards to get full lawyers involved at ONCAT.

Arguably wasn't a central purpose of creating such a Tribunal a fairer dispute resolution within a lower key forum than the conventional civil justice system ?

Watch for Hearings routinely becoming motions to obtain & maximize the fees of full lawyers against self-represented disputants See : "unbalanced" re-asserted at the Tribunal itself !

Unless somewhat shielded by an Adjudicator, widening allowable legal costs might readily head to "self-representeds" routinely facing a reverse onus to disprove "vexatious" etc That's : no matter how they participated, respectful or otherwise.

The so-called "American System" - where generally disputants expect to suck up their own legal expenses regardless of outcome - affects everybody. But it may be far more appropriate in wider keeping this Tribunal a cheaper way to resolve disputes .

Exactly where does the survey package reflect this ? . .
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#19297
ONCAT adjudicator awards partial legal costs against EV installation costs claimant 2021/11/20 17:58  
Relevant to concurrent opinion sampling about whether to award legal costs at ONCAT an ONCAT adjudicator has just deemed SOME of a geriatric Applicant's conduct ( during an ONCAT process ) to justify SOME of the respondents' legal costs.

There had been FOUR ( 4 ) "decisional outputs" including Divisional Court appeal before the S.R.L. self-represented Applicant peremptorily abandoned her Application. ONCAT deemed that to be conceding the merits.

SEE : "ONCAT adjudicator : When’s too late ? Is ONCAT the venue to force EV recharge ? KONG v TSCC # 1959 et al ”
https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=2&id=19193#19193
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#19316
Will TRIBUNAL adjudicators eventually get FULL POWER to regularly award LEGAL COSTS ? 2022/03/23 16:25  
An article ( by influential Ottawa condo lawyer Jim Davidson ) records what appears to be a subtle shift towards empowering "as a general rule" FULL LEGAL COSTS AWARDS by TRIBUNAL ADJUDICATORS.

In a Provincial election year it might be surprising to see any rush to widen that power to do so beyond exceptional cases. BUT the reality of course is that not all Applicants nor Respondents participate in sufficient good faith. Some folks need incentives to play ball fairly.

So far this sorta Tribunal has been in contrast to American condo/HOA wars, in that the Tribunal experiments of Ontario & British Columbia have not yet broken through many U.S. jurisdictions.

Some U.S. states also set up dubious ( ? pseudo ? ) oversight, one state body actually having been formally arraigned by a state Grand Jury after merrily approving one too many elections with MORE VOTES recorded CAST than eligible owner voters !

American attorneys & taxpayers may not be eagerly rushing towards what arguably can widen settlement opportunities & reduce court congestion albeit with taxpayer assistance.

As to restrictive covenant wars generally - the really Wild West - Ontario however has not gone as far as England & Wales with its Upper Tribunal ( Lands Chamber ) for covenant challenging.

Mr Davidson's article with links to Rule Changes

March 23/22 "Changes to CAT Rules Respecting Costs" by lawyer Jim Davidson ( Davidson Houle Allen LLP )
https://dhacondolaw.ca/condo-law-news/changes-to-cat-rules-respecting-costs/

Mr. Davidson links valuably to :

CAT Rules eff Jan 1/22 : https://www.condoauthorityontario.ca/wp-content/uploads/2022/01/CAT-Rules-of-Practice-Jan-1- 2022.pdf


plus Direction as to changes to Rules 48 & 49 eff Jan 1/22 https://www.condoauthorityontario.ca/wp-content/uploads/2021/12/CAT-Practice-Direction-Approach-to- Ordering-Costs-January-1-2022.pdf
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