Peel Standard Condominium Corporation No. 779 v. Rahman, 2021 ONSC 7113
DIVISIONAL COURT FILE NO.: 11/21
DATE: 20211028
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: PEEL STANDARD CONDOMINIUM CORPORATION NO. 779, Applicant
AND:
AQIB RAHMAN, Respondent
AND:
CONDOMINIUM AUTHORITY OF ONTARIO - CONDOMINIUM AUTHORITY TRIBUNAL, Respondent
BEFORE: F.B. Fitzpatrick, S.T. Bale and Kristjanson JJ.
COUNSEL: Antoni Casalinuovo and Victor Yee, for the Applicant
Aqib Rahman, Self represented
Luisa Ritacca and Dragana Rakic for the Respondent Condominium Authority Tribunal
HEARD at Brampton by Videoconference: October 20, 2021
ENDORSEMENT
Kristjanson J.
[1] This is an application for judicial review brought by the applicant Condominium Corporation. The respondent Aqib Rahman is the owner and resident of a unit in the applicant’s building. The underlying dispute relates to whether Mr. Rahman was entitled to use a designated accessible parking space located in a lot marked ‘Visitor Parking Only’, and whether the Condominium Corporation was entitled to charge Mr. Rahman for costs of enforcement relating to the parking issue.
[2] Mr. Rahman commenced an application at the Condominium Authority Tribunal (“CAT”), an online dispute resolution tribunal with a limited statutory jurisdiction. The Condominium Corporation brought two interlocutory motions, one on jurisdiction and improper purpose, and the other regarding a reasonable apprehension of bias, both disposed of prior to the hearing. Following a written hearing, Member Laurie Sanford of the CAT determined that the tribunal had jurisdiction to hear the parking matter, found in favour of Mr. Rahman regarding the use of the accessible parking spot, and ordered the Condominium Corporation to pay costs and damages: Rahman v. Peel Standard Condominium Corporation No. 779, 2021 ONCAT 13.
[3] The applicant argues that both on the interlocutory motions and the hearing, the CAT exceeded its jurisdiction, made several errors of law, and breached procedural fairness and natural justice.
[4] The preliminary issue in this case is whether the court should dismiss the application for judicial review given that there is a statutory right of appeal from the CAT’s decision. I would dismiss the application for judicial review on the basis that the Condominium Corporation failed to exhaust its right of appeal, and there are no exceptional circumstances in this case warranting the court’s interference by way of judicial review at this time.
Statutory Scheme
[5] The CAT is a relatively new administrative tribunal, and there are no reported decisions from this Court about the CAT. The CAT was established in 2017 under section 1.32(1) of the Condominium Act, 1998, S.O. 1998, c. 19, (the "Act"). Under sections 1.36(1)-(2) of the Act, the CAT is empowered to resolve prescribed disputes between unit owners and condominium corporations on application of either party, as well as prescribed disputes involving unit occupiers, mortgagees, and purchasers.
[6] The disputes that the CAT may resolve on an application under section 1.36 of the Act are prescribed by the Condominium Authority Tribunal Regulation, O. Reg. 179/17 (the "CAT Regulation"). Since October 1, 2020, these have included disputes with respect to provisions of the declaration, by-laws or rules of a condominium corporation that govern pets, vehicles, parking or storage, and indemnification or compensation regarding such disputes. However, disputes that are "also with respect to section 117 of the Act" - which prohibits dangerous activities in units and common areas - are excluded from the CAT's jurisdiction.
[7] The CAT has exclusive jurisdiction to exercise the powers conferred on it under the Act and to determine all questions of fact or law that arise in proceedings before it, except questions regarding the constitutional validity of statutes or regulations.
[8] The CAT is the first Ontario tribunal to adopt a completely online dispute resolution process. There are three stages, comprising negotiation; mediation with the assistance of a CAT mediator; and an adjudicative hearing by a CAT member assigned to conduct a written, online hearing and issue a decision and final order. This is a model which is designed to minimize legal costs and delay and maximize accessibility to self-represented parties. This is a unique response to issues – pets, vehicles, parking, and storage – that should be resolved in an expeditious and low-cost manner which avoids resort to the courts.
[9] A party to a proceeding has a right to appeal a decision of the CAT to this court on a question of law pursuant to section 1.46(2) of the Act, which provides:
1.46 (2) A party to a proceeding before the Tribunal may appeal the order to the Divisional Court on a question of law in accordance with the rules of court.
(3) On the appeal, the Divisional Court may affirm, reverse or vary the order of the Tribunal.
[10] Subject to this right of appeal, section1.46 provides that "an order of the Tribunal in a proceeding is final and binding."
Should the Divisional Court dismiss the judicial review application?
[11] The CAT submits that where a party has failed to take advantage of their appeal rights, judicial review should only be granted where the applicant can point to the existence of exceptional circumstances. Further, the CAT raises the concern that, due to the differing standards of review on judicial review and on appeal, any comment made by this court on an issue of law in respect to the CAT’s decision could be overturned on a section 146 appeal.
[12] The respondent Mr. Rahman submits that the Court should use its inherent power to control its process and dismiss this application as an abuse of process.
[13] The CAT first raised the concern regarding the appropriate statutory appeal route in its factum in June 2021. None of the counsel reached out to discuss the concerns and attempt a resolution, as they should have done. In a timely manner counsel could have discussed productive means of resolving concerns, which may have included a consent to abandon the judicial review, extend time for filing of the Notice of Appeal, and proceeding by way of appeal. The Condominium Corporation did not respond to the issue prior to the appearance in court today. It filed no materials and did not seek a Case Management attendance to file a reply factum, or to discuss whether, prior to attending before the panel, the application could be converted to an appeal. Any of these steps might have prevented what happened today and would have avoided a misuse of the resources of the clients and the court.
Analysis
[14] The preliminary issue is whether this court should exercise its discretion to refuse to hear the judicial review given the Condominium Corporation’s failure to pursue the statutory right of appeal. Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c J.1 (“JRPA”) preserves the court's jurisdiction to judicially review decisions of administrative decision makers "despite any right of appeal." Section 2(5) of the JRPA provides that the Court may refuse to grant any relief on an application for judicial review.
[15] Judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy. This court recently held in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct) that a limited right of appeal from decisions of an administrative body to the Divisional Court constitutes an adequate alternative remedy to an application for judicial review and, therefore, the Court should exercise its discretion to hear judicial review applications with respect to those aspects of a decision not covered by the statutory appeal right “if at all, in exceptional circumstances.”
[16] The applicant did not provide an explanation as to why they did not appeal the decision, nor did they cite exigent circumstances that would justify premature judicial review. At the hearing, counsel for the applicant submitted that since the matter involves breaches of procedural fairness, including reasonable apprehension of bias, they decided to proceed by way of judicial review. However, it is clear from this court’s jurisprudence that where there is an appeal on a question of law, issues of procedural fairness and jurisdiction do not constitute exceptional circumstances justifying a decision to by-pass a statutory right of appeal since those issues will be considered as questions of law on an appeal.
[17] In Tipping v. Coseco Insurance Company, 2021 ONSC 5295 (Div. Ct.), Justice Favreau found that judicial review is not available, absent exceptional circumstances, where there is a statutory appeal not pursued by the applicant. Favreau, J. held at para. 36:
Judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy: Harelkin v. University of Regina, [1979] 2 S.C.R. 561. Absent exceptional circumstances, the court will dismiss an application for judicial review where an applicant has not exhausted all alternative remedies: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at paras. 68-70. The Divisional Court has repeatedly dismissed applications for judicial review where a party has not pursued a right or appeal or other available remedies: see, for example, Stentsiotis v. Social Benefits Tribunal, 2011 ONSC 5948; Worden v. Ontario Municipal Board, 2014 ONSC 7247; Hsieh v Ministry of Community and Social Services et al, 2017 ONSC 3094; and Vangjeli v. WJ Properties, 2019 ONSC 5631.
[18] In Tipping v. Coseco Insurance Company the court held at para. 41 that: “Procedural fairness and natural justice, including allegations of bias, are questions of law. An appeal from the LAT on those issues is therefore an obvious adequate alternative remedy.” The same applies to an appeal from the CAT. In Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756 (Div Ct), the court dismissed a judicial review application on the grounds that the applicant had failed to pursue a statutory appeal. The court held at para. 35 that an issue of procedural fairness can be raised on appeal, and allegations of procedural unfairness do not constitute an exceptional circumstance.
[19] This court must consider the intention of the Legislature in providing a statutory appeal from the CAT. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court stated that the “polar star” of judicial review is legislative intent, reaffirming the importance of giving effect to the Legislature’s institutional design choices about the scope of judicial oversight: paras. 33-34 and 36. I must give weight to the legislative intent to limit this court’s review of CAT decisions to questions of law only, and to allow the CAT to “function with a minimum of judicial interference” on questions of fact and mixed fact and law: Vavilov at para. 24.
[20] I also consider that the core issues raised by the Condominium Corporation could have been raised as questions of law on the statutory appeal. These include issues about whether the CAT had jurisdiction to consider the application, failures of procedural fairness including a reasonable apprehension of bias, and errors of law relating to damages and costs of enforcement.
[21] This case does not present any exceptional circumstances to justify the court’s interference by way of an application for judicial review. As stated in Yatar at para. 39: “A key question is whether the judicial review is appropriately respectful of the statutory framework and the purposes and policies underlying the statutory scheme.” The intent of the legislature is that decisions of the CAT be appealed on questions of law alone. The proper legal avenue is to pursue the statutory appeal.
[22] The Condominium Corporation argued that the matter should proceed as an appeal today, since in their Notice of Application for Judicial Review they had referred to the availability of the statutory appeal. Referring to an available statutory appeal does not mean that it is a statutory appeal. This represents a misunderstanding of the importance of the failure to pursue the appropriate remedy. There are different requirements governing appeals and judicial reviews under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The powers of the court differ. The role of the CAT differs. I have determined that it would not be fair to the parties to proceed as if this were a properly constituted appeal, given the importance of the requirement that the statutory appeal be limited to (and properly framed as) questions of law. I also place weight on the significant difference that standard of review makes to the arguments, given that statutory appeals are subject to appellate standards of review.
[23] I would dismiss the application, without prejudice to any motion the applicant may bring for an extension of time within which to commence the appeal, on notice to the respondent Mr. Rahman and the CAT. The applicant is to seek a case management conference to arrange for scheduling of the motion to extend time for commencing the appeal, and whether the respondent Mr. Rahman consents to the extension of time as I expect he will. The parties should also canvas the appropriate role of the CAT on the appeal.
[24] The applicant is to pay forthwith to Mr. Rahman costs of $150.00, inclusive. The CAT did not seek costs, and none are awarded.
“Kristjanson J.”
I agree “F.B. Fitzpatrick J.”
I agree “S.T. Bale J.”
Date: October 28, 2021