McDonald v. Peel Standard Condominium Corporation No. 683, 2022 ONCAT 138

CONDOMINIUM AUTHORITY TRIBUNAL

DATE: December 5, 2022 CASE: 2022-00608SA

Citation: McDonald v. Peel Standard Condominium Corporation No. 683, 2022 ONCAT 138

Order under section 1.47 of the Condominium Act, 1998.

Member: Michael Clifton, Vice-Chair

The Applicant, Craig McDonald Self-Represented

The Respondent, Peel Standard Condominium Corporation No. 683 Shiva Behmanesh, Agent

Hearing: Written Online Hearing – October 6, 2022 to December 1, 2022

REASONS FOR DECISION

A. INTRODUCTION

1The parties entered into a Settlement Agreement on December 22, 2021, (the “Settlement Agreement”) which concluded Tribunal case 2021-00379R. Under subsection 1.47 (3) of the Condominium Act, 1998, (the “Act”) where a party to a settlement agreement believes another party has contravened the agreement, they may make an application to the Tribunal for an order to remedy the contravention, provided that the application is brought within six months after the alleged contravention occurred, or at a later time “if the Tribunal is satisfied that the delay in applying was incurred in good faith and no substantial prejudice will result to any person affected by the delay.”

2The Applicant brought this case alleging a contravention of the Settlement Agreement by the Respondent. The Applicant filed this case on September 27, 2022. The alleged contravention occurred on January 10, 2022. The Respondent sought dismissal of this case based on both the apparent delay of the Applicant in making the application and the fact that the Applicant is not an owner of a unit, as that word is defined in the Act. Both of these preliminary issues were dealt with during the hearing, and I determined that the case should not be dismissed on either ground. Summaries of my decisions and analyses in regard to both these matters are set out below.

3The substantive issues in the case were then addressed, which are:

1. Did the Respondent breach the Settlement Agreement? and

2. If so, what remedy is appropriate?

For the reasons set out below, I have determined that the Respondent did not breach the Settlement Agreement and the case is dismissed without costs.

B. PRELIMINARY ISSUES

Preliminary Issue No. 1 – Should the application be dismissed for delay?

4As noted above, subsection 1.47 (3) of the Act provides that a party to a settlement agreement may make an application to the Tribunal for an order to remedy an alleged contravention of the agreement, provided that the application is brought within six months after the alleged contravention occurred, or at a later time “if the Tribunal is satisfied that the delay in applying was incurred in good faith and no substantial prejudice will result to any person affected by the delay.”

Background

5The Settlement Agreement is clearly written and sets out precise timelines for compliance. It provided that the Applicant had five business days from the date it was made (December 22, 2021) to pay $70 to the Respondent to complete the Applicant’s Records Request. The Respondent then had five additional business days in which to provide the requested records.

6The Settlement Agreement included clear directions with respect to how certain days should be treated, with the result that the Applicant’s deadline for making the required payment was January 4, 2022, and, if such payment was made, the latest date on which the Respondent would be required to provide the records would have been January 11, 2022. The Applicant satisfied the requirement for payment, and on January 10, 2022, the Respondent provided records to the Applicant.

7The Applicant then alleged that the records provided by the Respondent are missing pages and that they are deficient in regard to their contents, which the Applicant believes constitute contraventions of the Settlement Agreement. The parties spent some time discussing and seeking to resolve the Applicant’s complaints. These discussions finally broke down on February 9, 2022.

8The alleged contraventions occurred on January 10, 2022, when the records were provided. The subsequent discovery of the alleged contravention does not alter the date of its occurrence. Also, while I commend the parties for seeking to resolve the issues after that time, the conclusion of their dialogue on February 9 also does not have the effect of altering or extending the date of the alleged contravention. The date of the alleged contravention is therefore January 10, 2022, and the date by which a case had to have been filed in order to satisfy the requirements of subsection 1.47 (3) of the Act, was July 10, 2022. The present case was not filed until September 27, 2022.

9After reviewing the submissions and evidence of both parties relating to the issue of delay in view the two-part test set out in subsection 1.47 (3) of the Act – relating to the good faith of the applicant and whether any prejudice arises due to the delay – I decided that this case should not be dismissed on this basis for the following reasons.

Good Faith

10The Applicant had in fact first initiated a case at the Tribunal on July 7, 2022. An error in the CAT-ODR system prevented him from adding a respondent or paying the filing fee. Attempts were made to resolve this matter with Tribunal staff throughout July and August. Ultimately, the Applicant was able to commence a case successfully in September but encountered a further problem in the system, which was not resolved until September 27, 2022, when the present case was opened. Tribunal staff described this as a “one-in-a-million glitch.” I am satisfied that the Applicant acted in good faith and was not at fault for the case not being started within six months of the alleged contravention.

Prejudice

11Prejudice in relation to a delay may be found if the delay causes some unjust outcome or procedural difficulty for the other party. The Respondent argued that if the case proceeded it would be prejudiced by “being asked to deal directly with a Tenant” (as the Applicant is not the owner of a unit) and also alleged that the Applicant’s “sole objective” in bringing this case is to harass the condominium manager in relation to a dispute over repairs.

12It cannot be asserted that there is a prejudice to a condominium simply because it must “deal” (directly or otherwise) with a tenant (regardless of whether or not that term is correctly applied to the Applicant’s situation). Condominiums must always deal with all residents of the property, not just their owners. Regarding the Applicant’s alleged “sole objective” of harassment, the Respondent led no actual evidence of that motivation, and I found no reasonable basis for the allegation. In any event, in order to decide about the Applicant’s motives, I would have needed to consider the facts surrounding the Applicant’s substantive claims anyway. I found that the Respondent presented no argument or evidence of any valid prejudice it would suffer if the case was permitted to continue despite the delay.

Preliminary Issue No. 2 – Should the application be dismissed due to the Applicant’s lack of standing?

13Under subsection 1.36 of the Act, only the following parties may bring an application to the CAT:

1. A condominium corporation,

2. An owner of a condominium unit,

3. A mortgagee of a condominium unit, and

4. In limited circumstances, a purchaser of a unit.

14“Owner” is defined in the Act is as follows:

… a person who is shown as the owner of a freehold interest in a unit and its appurtenant common interest, according to the records of the land registry office in which the description of the corporation is registered, and includes a mortgagee in possession and a declarant with respect to any unit that the declarant has not transferred to another person

15The Applicant provided evidence that he and his wife (who is the owner of the unit as shown on the records of the relevant land registry office) entered into a private agreement whereby he was to purchase and obtain an equity interest in the unit, though the Applicant’s interest is not registered on title. I acknowledge there are various senses in which a person may claim a valid interest in title to property; however, regardless of whether any of those constitutes what the Applicant referred to as a more “common” definition of ownership than the one in the Act, it is only the definition in the Act that is relevant to the question of standing before this Tribunal.

16The definition in Act specifically requires that the person be “shown” as an owner “according to the records of the land registry office in which the description of the corporation is registered.” The Applicant acknowledges he does not satisfy that criterion, and therefore the Applicant cannot be viewed as a person who has standing to bring a new application before this Tribunal.

17This does not, however, conclude the analysis. In this case, there are at least the following three additional factors to consider:

1. The Applicant provided written authorization from his spouse, who is the registered owner of the unit. She specifies he is entitled to represent her before the CAT in both this case and in case 2021-00379R, which is the case that concluded with the parties entering into the Settlement Agreement.

2. While it appears that the Respondent made some minimal attempts to impugn the Applicant’s standing prior to engaging fully in 2021-00379R, it does not appear they ever raised the issue with the Tribunal member conducting the Stage 2 proceedings in that case. Instead, the Respondent not only participated in those Stage 2 proceedings, but willingly entered into the Settlement Agreement with the Applicant without, it appears, at any time requiring that the actual unit owner participate in the proceedings or expressly accede to the agreement.

3. Section 1.47 (3) of the Act states that “a party to [a settlement agreement made during a prior CAT proceeding] who believes that another party has contravened the settlement [agreement] may make an application to the Tribunal” for a remedy. This section does not specify that the party in question must have had proper standing in the prior case when the agreement was made. Though obviously this should generally be assumed to be the case, the section only requires that they are a party to the settlement in question.

18The facts in this case are that the Applicant is a party to the Settlement Agreement, that the Respondent willingly entered into that agreement with the Applicant despite their alleged concerns about his ownership status, and that the actual owner of the Applicant’s unit expressly states she wishes to rely upon the Applicant’s representation of her interest in relation to the Settlement Agreement. Keeping all these factors in mind, I concluded that it would constitute an unfair and unjust result at this juncture to dismiss the case on the basis of standing.

C. MAIN ISSUES & ANALYSIS

19As noted above, the substantive issues in the case are:

1. Did the Respondent breach the Settlement Agreement? and

2. If so, what remedy is appropriate?

Issue No. 1 – Did the Respondent breach the Settlement Agreement?

20As explained above, the Settlement Agreement gave the Respondent five business days from the date on which the Applicant made the payment required by the agreement, to provide the requested records, which were described in the agreement as board meeting minutes in which the following specific matters were discussed or the subject of decisions made, as written by the parties in the agreement:

1. Re-routing the downspouts from the existing drainage system to the grass;

2. Providing Tremco’s quote to Hamadi Roofing (“Hamadi”) during the bidding process;

3. Awarding the contract for re-routing the downspout to Hamati, over other competitive bidders;

4. Shortening the re-routed downspouts, for aesthetics;

5. Extending Hamati’s contract to cover a new scope of work;

6. Reviewing the decision regarding awarding the contract to Hamati, and/or considering the quality of their work, including any required re-work.

21On January 10, 2022, the Respondent provided the Applicant with the minutes of board meetings held on May 26, 2020, and June 24, 2020, which the Respondent stated satisfied the requirements of the Settlement Agreement. On review of those documents, the Applicant concluded that, in fact, the minutes did not address all of the issues specified in the Settlement Agreement. He also believed the documents were missing pages since on the bottom of the second and final page of each of them is the notation, “Page 2 of 3”.

Missing Pages

22The Respondent explained that the third page of each of the documents included a record of the board’s “in camera” discussions, and that none of these discussions referred to the issues specified in the Settlement Agreement. I find this is a satisfactory answer to that concern and that withholding those pages does not constitute a contravention of the Settlement Agreement.

Missing Topics of Discussion and Decision

23Of the six topics with respect to which the Respondent promised in the Settlement Agreement to provide minutes, only two are clearly dealt with in the minutes that were provided.

24The Respondent asserts that for some topics, this is in part because the minutes “summarize discussions and decisions” and do not include “all of the specific details.” The Respondent also admits that certain topics were never discussed in any board meeting and asserts “the Applicant has been advised of this in the past.”

25While it is a common and generally appropriate practice to include only summaries without significant detail in minutes, the fact is that it appears that two-thirds of the subjects identified in the Settlement Agreement are not included in even a summary manner, let alone in any detail. It seems that the majority of topics listed in the Settlement Agreement were never actually discussed in any board meetings or recorded in their minutes.

26Given the nature of those subjects, this admission could raise questions regarding the transparency of the governance practices or record keeping of the Respondent – the kind of questions that appear to have motivated the Applicant’s concerns – but neither of those are the subject matter of this case. The question here is solely restricted to whether the fact that the minutes do not deal with many of the listed issues constitutes a contravention of the Settlement Agreement.

27On its face, there is the appearance of a contravention; but I note that the Settlement Agreement also specifies (emphasis added by me):

The Respondent will provide the Applicant all of the above records that it has within five business days of receiving the $70 payment referred to in (1) above

28The Settlement Agreement therefore only required the Respondent to provide the documents that it actually possesses. If there are, in fact, no minutes that contain the missing topics listed in the agreement, then the Settlement Agreement does not require the Respondent to provide them.

29The Applicant has not led any evidence to demonstrate that there are, in fact, other minutes that deal with such topics and that the Respondent has not provided. As such, the Respondent must be taken at its word that none exist, and it therefore cannot be found to have contravened the Settlement Agreement on that score. No other contraventions of the agreement were alleged.

Issue No. 2 – If there was a breach, what remedy is appropriate?

30As I have found there was no contravention of the Settlement Agreement, there is no basis for ordering a remedy under section 1.47 (3) of the Act.

31I acknowledge this outcome will be disappointing to the Applicant. The Applicant appears to have valid concerns about the management of certain matters by the Respondent and is frustrated by the Respondent’s apparent lack of transparency in the conduct and record-keeping of its affairs. Such concerns remain unresolved by this case and the original case 2021-00379R.

32For the Respondent’s part, it expressed evident frustration at having to “deal with” the Applicant in relation to these matters. Based on the facts before me, it appears that if the Respondent had not sought after the mere expedience of concluding case 2021-00379R quickly by entering into the Settlement Agreement, despite already knowing that it neither could nor would provide the Applicant with the kind of records he was seeking, these issues might have been dealt with sooner, avoiding both this second case and, likely, many of the Respondent’s intervening interactions with the Applicant.

33The Applicant sought a penalty against the Respondent in this case. There quite obviously was no basis for any penalty here that the Tribunal is entitled to award. The Applicant also expressed irritation that he paid $70 to the Respondent to receive only four sheets of mostly irrelevant documentation. His irritation is understandable, but I have no basis for awarding compensation of that amount. I also find in the circumstances of this case no basis for an award of costs in favour of either party.

D. ORDER

34The Tribunal Orders that the case is dismissed without costs.

Michael Clifton

Vice-Chair, Condominium Authority Tribunal