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ONCAT adjudicator : When’s too late ? Is ONCAT the venue to force EV recharge ? KONG v TSCC # 1959 2021/03/05 12:16  
Not legal advice, as usual.

Had this Ontario condo owner's Application yesterday not been dismissed as untimely / too late, this ONCAT ( Ontario Condominium Authority Tribunal ) adjudication apparently would have been only its second pronouncement addressing disputes other than records access ( under ONCAT's Oct 1/20 expanded jurisdiction ).

Kong v. TSCC # 1959 et al issued March 4 2021

2 GTA condo corps - sharing parking, both with their own paid counsels - defeat S.R.L. self-represented owner Ms KONG's Application.

She sought an ONCAT Order forcing EITHER :

her getting authority to PARK & RECHARGE her electric vehicle in a ( corporation-shared ) VISITOR PARKING SPACE already endowed with an existing EV electric vehicle recharge installation ;

OR ELSE

( ordering ) her own condo corporation to ACTUALLY AUTHORIZE and itself to FUND an EV RECHARGE STATION FOR HER OWN EXISTING private PARKING SPACE.

( This is the same ONCAT adjudicator as recent Rahman adjudication : a legit Handicap-permitted owner elsewhere won an ONCAT Order that he be permitted to use 'first come – first served' what was construed to legally be a NON-allocated surface HANDICAP parking space - not one of the VISITOR parking spaces. )

Applicant Ms KONG at March 1/17 had been kicked out of using a surface VISITOR parking space with an EV re-charger. Miffed at seeing visitors ( & others ? ) using that electrified space, Ms KONG unsuccessfully demanded that her own condo corporation fund the installation of an EV re-charger dedicated to her own parking unit.

Refused, she eventually applied mid-October 2020 via ONCAT's just-widened jurisdiction to get her back into Visitor parking. OR ELSE to order a free EV re-charge installation for her own parking space.

There is some back-and-forth about medical justification. Ms KONG submitted back pains etc with only a doctor's medical opinion.

BUT

1 - Ms KONG here gets ruled almost 21 months too late to have filed her Application for an ONCAT Order.

That a merciless TWO YEAR LIMITATION clock started a-ticking at her expulsion from Visitor parking effective March 1/17 & ended Feb 28/19. ( the 2 year deadline : see the Condominium Act 1998's sections 1.36 (6) and (7) )

Uncited & un-discussed is that ONCAT's expanded jurisdiction itself - whether or not genuinely available to Ms KONG's beefs - came "out of the blue" only in mid-2020. If "discoverability' analysis had been available, how could she fairly be expected to even recognize ONCAT as a remedial choice until late summer 2020 ?

The ONCAT adjudicator UPFRONT construes the Tribunal’s legislated deadline/ timeliness limitation to differ from such imposed on ( most but not all ) civil litigants generally under Ontario’s Limitations Act 2002 S.O. 2002 ch 24 Sch B https://canlii.ca/t/31q ( such also potentially being extendible via “discoverability”.

The claimant-friendlier "discoverability" formula elsewhere might be pleaded to "toll" or extend someone's filing deadlines under Ontario's Limitations Act 2002.

and

2 - Because Ms KONG’s Application is here adjudicated TOO LATE under the preceeding rationale, the ONCAT adjudicator cites but declines to here discuss whatever un-detailed further JURISDICTIONAL defence was available to be also erected upfront against Ms KONG's claim by the respondent condo corporations’ counsels :

( Not legal advice of course. Looking just at the jurisdictional issue in this application, owners with a beef really should get professional counsel before dragging themselves & everyone through this sorta expense & vexation ) :

SO we don't hear how such jurisdictional argument might have unfolded. It MIGHT have included this :

Does ONCAT’s Oct 1/ 20 expanded scope of jurisdiction actually include parking / vehicle-related disputes including merely "anticipatory" or "prospective" due process for EV rechargers under Ontario’s ( condo legislation's ) prescribed O.Reg 48/01 & CAO Condo Authority jurisdictional O.Reg 179/17 ?

. . . . as in : "I demand my rights to ( free ? ) EV charging whether in Visitor parking or installed by my condo corporation's funds in my own parking space !"

O.Reg 48/01 : One expects that under O. Reg 48/01’s Part IV Operation an answer might start from an owner’s EV charging installation literally not even being legal in their own parking space without the parties’ establishing a prior “Agreement for Installation” pursuant to O.Reg 48/01 subsection 24.6 (3).

But what about "not yet Agreed" parking & vehicle disputes ?

And even further, about a formalized ss 24.6 (3) "Agreement for Installation" once ALREADY put in place under O.Reg 48/01, would ONCAT at present even have jurisdiction to hear beefs about such within Part 1.2 “Condominium Authority Tribunal” within the Ontario’s Condominium Act 1998 That's : as to resolving disputes once such ss 24.6 (3) Agreement ( under O.Reg 48/01 ) would have been executed, in place & registered onto title etc. ?

ONCAT’s jurisdiction ?

ONCAT’s jurisdiction to resolve disputes is set by O. Reg 179/17 https://www.ontario.ca/laws/regulation/170179 :

( from O.Reg 179/17 effective Oct 1/20 ) : " . . . Scope of disputes

1. (1) The prescribed disputes for the purposes of subsections 1.36 (1) and (2) of the Act are,

.. . . (d) subject to subsection (3), a dispute with respect to any of the following provisions of the declaration, by-laws or rules of a corporation :

. . . . (ii) Provisions that prohibit, restrict or otherwise govern an automobile, motorcycle, . . .. . in a unit, the common elements or the assets, if any, of the corporation.

(iii) Provisions that prohibit, restrict or otherwise govern the parking or storage of items in a unit, an asset, if any, of the corporation, or any part of a unit, an asset or the common elements, that is intended for parking or storage purposes.

(2) A purchaser may apply to the Tribunal under section 1.36 of the Act with respect to a dispute described in clause (1) (a) or (c) of this section if the application is for the resolution of a dispute with the corporation regarding compliance with subsection 55 (3) of the Act, but not any other dispute. O. Reg. 179/17, s. 1 (2).

. . . (3) Clause (1) (d) does not apply to a dispute that is also with respect to section 117 of the Act, an agreement described in clause 98 (1) (b) of the Act or an agreement described in subsection 24.6 (3) of Ontario Regulation 48/01 (General) made under the Act. O. Reg. 465/20, s. 1 (2). " - unquote

SO bottom line one thing Ms KONG would next have had to wrestle with :

Was there an ONCAT jurisdiction to even hear any EV demand, whether or not an Agreement had been formalized to electrify her own parking space ? Or a disputed option such as in : "I have a right to either use electrified Visitor parking or to have my own space receive a free EV recharging installation !" Would this scenario come within ONCAT's jurisdiction ?

"Did I get due process in exercising a legislated due process to apply for some access to an EV recharger ?"

Does ONCAT's jurisdictional limit address EV electrification demands “ab initio” ?

Whatever, Ms KONG's situation is NOT that of H-permitted Mr Rahman awarded 'first come-first served' use of unallocated mere Handicap surface parking.

It would have been interesting to hear the jurisdictional arguments.

And also rationalizing why Ms KONG's demands - fair or not - should be deemed untimely ( in March 2019 ) without a possible ONCAT remedy even being within contemplation until announcements in mid 2020 amidst massive Covid-19 disruptions.

Bottom Line

ONCAT may not or not yet be the venue for an owner to try to slamdunk a Visitor or private EV re-charger. And with less precision than a dated Records Access submission, Applicants face a literal two year deadline.

And the jurisdictional speculation above shows that it could be extremely confusing for any S.R.L. do-it-yourselfer to try to figure out what's going on and even if ONCAT has jurisdiction . . .

How simpler it is for us out here in the wilder Building Scheme universe . . .

Kong v. TSCC # 1959 et al 2021 ONCAT 18 issued March 4/21 https://canlii.ca/t/jdk5k
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