July 30, 2018 - By Antoni Casalinuovo
Condominium Authority Tribunal Dismisses Owner’s Application For Being Vexatious
In the 4th decision released by the Condominium Authority Tribunal (the “CAT”), the CAT dismissed a unit owner’s application for the records of a condominium, which was filed by the unit owner 2 weeks after the Court of Appeal upheld the finding that she was a vexatious litigant, because the application itself was vexatious.
In the latest turn of events between Ms. Manorama Sennek and Carleton Condominium Corporation No. 116 (“CCC 116”), Ms. Sennek made an application to the CAT for a financial penalty against CCC 116 for failure to produce a record – a record which she was repeatedly advised in court, did not exist and she never made a request in writing for same.
Aside from the bizarre factual history between CCC 116 and Ms. Sennek (which we have written about elsewhere in articles HERE on Condocentric
and in industry publications), the decision from the CAT actually creates an interesting development in the law.
The CAT reviewed the vexatious litigant order made by the Ontario Superior Court of Justice, which was upheld by the Court of Appeal, and determined that the order actually did not apply to the Tribunal. However, I do not agree with the CAT’s findings in this regard, and this issue would make for a very interesting appeal to the Divisional Court of Ontario, because the issue of whether a vexatious litigant order by the Superior Court of Justice applies to the Tribunal has never been addressed by the courts.
In this particular case, Ms. Sennek has an order by the Superior Court of Justice against her which prohibits her from commencing “any action, application or proceeding” without first obtaining leave of a Judge from the Ontario Superior Court Justice. Given that the CAT accepts “applications”, CCC 116 argued that the vexatious litigant order should be enough to stop the CAT proceeding because Ms. Sennek never sought leave from a Judge first. Furthermore, the Statutory Powers Procedure Act implies that the CAT would be subordinated to the Superior Court’s jurisdiction on the vexatious litigant order.
Despite what I view to be the serious flaw in the CAT’s decision, the CAT ultimately arrived at the correct conclusion by dismissing Ms. Sennek’s records request application. The CAT found that based on the history of this matter, Ms. Sennek was trying to re-litigate an issue already addressed by the Superior Court and therefore, the application to the CAT itself was vexatious.
The interesting takeaway from the case shows that the CAT will review the context behind an application before getting into the merits; especially if there is a concern with respect to the motivations and/or lack of good faith behind the party who initiated the application to the CAT.
However, after 3+ years of legal proceedings with Ms. Sennek, the condominium corporation may be more than content to finally have no more outstanding litigation with Ms. Sennek – for now.
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