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January 13, 2020 - By Victor Yee

Ontario Superior Court Enforces CAT Order For First Time

With the arrival of a new year and a new decade, came a new ruling from the Ontario Superior Court of Justice, confirming that an Order by the Condominium Authority Tribunal of Ontario (the “CAT”) can be enforced by the Superior Court – and full indemnity legal costs may be awarded against a party that refuses to comply with a CAT Order.

The facts of this case are unfortunate, but in Tharani Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 812, 2020 ONSC 189, the Superior Court affirmed that awarding a unit owner with their full legal costs against the condominium makes it clear that CAT Orders must be complied with.

Condominium Fails to Comply with Records Request

On October 30th 2018, our client Tharani Holdings Inc., a corporate unit owner who owned 3 units of the condominium (“MTCC 812”), filed a Request for Records under Section 55(3) of the Condominium Act (the “Act”), seeking copies of 9 core records and 1 non-core record.  MTCC 812 failed to respond to this Request for Records, and the unit owner was forced to bring an Application to the CAT.

MTCC 812 then subsequently failed to respond to any of the three (3) Notices of Case that were issued to it by the CAT, advising MTCC 812 that there was an ongoing CAT Application against it.

On February 19th 2019, in Tharani Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 812, 2019 ONCAT 3, the CAT ordered MTCC 812 to deliver all 10 categories of the requested records within 30 days, and ordered MTCC 812 to pay a $2,000 penalty to the owner.  We wrote about this CAT decision back in February as well; you can read our previous February 27th 2019 article here.

Condominium Fails to Comply with CAT Order

Even after a copy of the CAT Order was delivered to MTCC 812 and its Condominium Manager, and even after a subsequent follow-up letter was sent warning them that the unit owner would be bringing an Application to the Superior Court if the CAT Order was not complied with, MTCC 812 still failed to comply with the 30-day records disclosure requirement set out in the CAT Order or pay the $2,000 penalty to the owner.

Accordingly, our client was forced to bring an Application to the Ontario Superior Court of Justice, under both:

  1. Section 134 of the Condominium Act, to enforce MTCC 812’s compliance with its records-disclosure obligations under Section 55(3) of the Act (a “Compliance Application”); and
  2. Section 19 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which stipulates that a certified copy of a Tribunal’s Order can be filed in the Superior Court and enforced as if that Tribunal Order was an Order of the Superior Court itself (a “Contempt Application”).

This was the 1st time ever that a CAT Order had to be enforced by the Ontario Superior Court of Justice.  The CAT had only been established in November 2017 – and most parties comply with an official Order of the CAT once it is rendered.

Unfortunately, that was not the case with MTCC 812.  It was not until August 1st 2019 – more than 4 months after the 30-day deadline in the CAT Order had expired – that MTCC 812 finally made disclosure of the 10 categories of records ordered by the CAT on February 19th 2019.

During the course of the proceeding in the Superior Court, MTCC 812 filed a sworn Affidavit of one of its Board members, attesting that the Condominium Manager was the one who failed to follow the Board’s instructions to comply with the February 19th 2019 CAT Order; ostensibly because of personal animosity between the individual Manager and a principal of the corporate unit owner.  However, due to the technical limitations of the CAT’s online dispute resolution (“ODR”) system at the time (the CAT’s ODR had only allowed for the unit owner to name 1 single party as the Respondent to the CAT Application), the CAT Order had been issued by the Tribunal against MTCC 812 only – not against any individual Board members or the Manager.

Superior Court Enforces the CAT Order, Awards Legal Costs

At the Ontario Superior Court of Justice, we successfully argued that even if MTCC 812 cured its contempt on August 1st 2019 (by disclosing the 10 categories of records required by the CAT Order) before the Application was finally heard by the Court, full indemnity legal costs should still be awarded against MTCC 812 for failing to comply with an explicit Order of the CAT. 

We argued that under Section 19 of the SPPA, the condominium’s failure to comply with the CAT Order amounted to contempt of court; and that under Section 134(3)(b)(ii) of the Condominium Act, a successful applicant owner should not be burdened with their legal costs of having to seek the Superior Court’s enforcement of the CAT Order against the intransigent condominium.

On January 10th 2020, the Superior Court ruled, at paragraphs 28 and 29:

“… I accept that the Applicant was successful in that this Application had the effect of enforcing the Respondent’s compliance with the Tribunal Order. I find that Tharani has established an entitlement to an award of costs payable by MTCC 812.

I accept the Applicant’s submission that I should exercise my discretion to order costs on a full indemnity basis for the period in which the Respondent failed to deliver the Requested Records to the Applicant: namely, from inception to August 1, 2019. An award of costs on a full indemnity basis makes clear that there are ramifications for failing to comply with the Tribunal’s Order regarding the timing of the delivery of the Records and is consistent with the principles underlying section 134(3)(b)(ii) of the Act.” [emphasis added]

One of the factors that the Court took into consideration in making its costs decision, was that in January of 2019, we had been forced to seek an urgent Injunction from the Superior Court (in front of a different judge, also in Toronto) to stop MTCC 812 from holding an Annual General Meeting (“AGM”) without having first included any financial statements whatsoever in the AGM Notice package.  The Superior Court granted the Injunction, and awarded our client with all of its legal costs on a full indemnity basis in that proceeding as well.  Accordingly, the Superior Court found that it was reasonable for MTCC 812 to expect to pay full indemnity legal costs here too, for failing to comply with the CAT Order.

The Court also considered the fact that MTCC 812’s own legal counsel submitted a bill of costs that indicated MTCC 812 had spent $29,738.03 in legal fees to defend against the Application; whereas our client’s bill of costs indicated that the unit owner had spent only $19,597.13 in legal fees.  Accordingly, the Court found that in comparison, our client’s legal fees were reasonable and that our file was not "over-lawyered".

The Court ultimately awarded a total of $14,716.91 in legal costs to be paid by MTCC 812 to the successful unit owner; 100% full indemnity legal costs up until August 1st 2019 when MTCC 812 finally disclosed the requested records, and 40% partial indemnity legal costs from August 2nd 2019 onwards.

Takeaways for Condominiums

Most parties, upon receiving an official Order from the CAT, will comply with the Order’s requirements.  If a condominium corporation does not comply however, the unit owner can bring an Application to the Ontario Superior Court of Justice to enforce the CAT Order against the condominium; and if successful, the non-compliant condominium could be forced to pay for all of the unit owner’s legal costs in the Superior Court.

The rules surrounding legal costs in the Superior Court are much more generous to a successful party, than in the CAT.  Under the CAT’s existing Rules of Practice, the Tribunal will not award a successful party with any of their legal costs “unless there are exceptional reasons”; a limitation that we have previously criticized, here and here.  However, the general common law rule in the Superior Court is that legal costs should be awarded to the successful party in the litigation.  The presumption in the CAT is that unless there are exceptional reasons, nobody should recover their legal costs; whereas the presumption in the Superior Court is that unless there are exceptional reasons, the winner should recover their legal costs incurred.

It is rare, even in the Superior Court, for a successful litigant to be awarded with more than 40% of their legal costs on a partial indemnity scale.  In this case though, it was unfortunately the behavior of MTCC 812 that resulted in our client being awarded with 100% of their legal costs on a full indemnity scale, up to the date that MTCC 812 finally disclosed the records required by the CAT Order.

In making such an extensive award of legal costs, the Superior Court made it clear to all parties involved in a CAT dispute that there are consequences for failing to comply with an Order of the CAT.

So if you’re a condominium corporation thinking about not complying with a CAT Order, remember that you could be exposing your community to a full indemnity legal costs award; and that, in the near future, the CAT may be issuing Orders that bind not only the condominium corporation but also the individual Board members and Condominium Manager as well.  If so, then the CAT Order could be enforced by the unit owner against such individuals in a Contempt Application; and those individuals could be forced to pay thousands of dollars in legal costs to the owner, even if the condominium eventually cures its initial contempt during the course of the legal proceedings.

Although this file was the 1st case in Ontario of the Superior Court enforcing an Order of the CAT, it likely will not be the last.  Condominium corporations, upon receiving a formal Request for Records from a unit owner and especially upon receiving a Notice of Case issued by the CAT, should be seeking legal advice from competent legal counsel with knowledge of condominium law.  At the very least, once a CAT Order has been issued by the Tribunal against the condominium, the condominium corporation should be seeking legal advice to help ensure that it fully complies with all of the requirements set out in the CAT Order – or else risk incurring the wrath of the Superior Court.

You can read a full copy of the Superior Court’s costs decision in Tharani Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 812, 2020 ONSC 189, here.


All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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