Self-Represented Litigants In Condo Law
The tragedy in Vaughan on December 18th 2022 highlighted for the world what condominium lawyers have known for many years – that, unfortunately, the access-to-justice crisis plaguing our legal system can have devastating consequences for unit owners, residents, Board members, and condominium communities.
For decades, the legal system in Ontario has suffered from a lack of meaningful access-to-justice, especially for individuals of middle-to-low socioeconomic means. Criminal law is understandably the first and foremost focus of access-to-justice efforts, given the potential for incarceration and loss of liberty. But for many years, advocates in the civil justice system have been sounding alarm bells too. The lack of meaningful access-to-justice in, for example, family law, has consequently increased the number of litigants who are representing themselves in divorce or child custody proceedings, without any assistance from a lawyer or paralegal.
Like condominium law, family law involves ongoing relationships between everyday people, high-strung emotions (especially when children are involved), and the potential for violence.
But at least in family law, there is government-funded duty counsel in the courthouses that can give free advice to a litigant in a family law proceeding, there are Legal Aid certificates for low-income individuals to work privately with a family law lawyer, and the Law Society of Ontario has now allowed paralegals to provide some family law services to the public, in recognition of the need for greater access-to-justice in this area of law.
There is currently nothing similar in condominium law. For the sake of unit owners and condominium communities in Ontario though, there really should be.
Solution is Not to Get Rid of Lawyers Altogether: The Family Law Approach
One suggestion that has been floated around to “even the playing field” in disputes between a condo corporation and a unit owner, is to prohibit lawyers and paralegals from representing any litigant whatsoever in the Condominium Authority Tribunal (the “CAT”).
The Auditor General’s 2020 report on condominium oversight (the “AG Report”) called for a total ban on lawyers and paralegals in the CAT – similar to the ban that British Columbia’s equivalent of the CAT (the “CRT”) has in place for condominium disputes. As I mentioned back in 2020, this is a bad idea. The Auditor General’s reliance on a B.C. CRT case for this idea was also severely flawed; because on appeal, the B.C. Supreme Court actually acknowledged that although some condominium disputes might appear at first glance to merely be about something small or trivial, the underlying disputes could be quite significant and thus require legal assistance for the parties.
Moreover, banning lawyers and paralegals altogether from the CAT may drive this service “underground”, so that the condominium’s lawyer is assisting the “self-represented” condo corporation from behind-the-scenes instead. This will concentrate such advisory services into the hands of the existing condo law firms in Ontario, since it will likely be the condo corporation’s existing legal counsel who performs such a role. Instead of having it out in the open that a party is being assisted by a specially-trained legal advocate, the other side and the adjudicator will not be aware of such “uneven” involvement.
In February of 2023, the Legislative Assembly of Ontario’s Standing Committee on Public Accounts tabled its views on the AG Report. Fortunately, the LAO Standing Committee recognized that eliminating a litigant’s choice of counsel altogether was not the way forward. Instead, the LAO Standing Committee stated that “equal representation” on both sides of a CAT dispute should explored, and noted that the Condominium Authority of Ontario (the “CAO”) was researching whether private insurance companies could offer legal expense insurance (“LEI”) coverage to unit owners. Similar to how some condo corporations in Ontario have LEI coverage to pay for the costs of hiring a lawyer to defend against a lawsuit brought against it by a unit owner, a unit owner with LEI coverage could have the insurer pay for the costs of hiring a lawyer to defend them against a lawsuit brought by the condo corporation.
If that “private sector” solution does not fix the issue of access-to-justice in condominium law, then adapting some solutions from the family law context might be useful. When faced with an access-to-justice crisis, family law did not get rid of all family lawyers altogether – instead, the involvement of lawyers and paralegals in family law was deliberately expanded.
As a wholly-online Tribunal, having a duty counsel or paralegal employed by the CAO to assist self-represented litigants in the “virtual courthouse” of the CAT might be another solution. That CAO duty counsel could, through the already-existing CAT online dispute resolution portal, assist any self-represented litigants from anywhere in Ontario. Even if that CAO duty counsel does not initially start out with a deep expertise in condominium law, over time, that duty counsel will become quite well-versed in the disputes brought before the CAT.
Legal Aid certificates for condominium law could also be supplied by the Ontario government – or, perhaps, funded by the CAO. The CAO operates on the annual contributions collected from each condominium corporation in the province, and the CAO’s budget might have to be increased to account for such legal aid certificate funding; but in the long run, having a good advocate in the unit owner’s corner might save condo corporations in costs overall.
How A Good Opposing Advocate Helps Condo Communities Overall
The purported shooter in the Vaughan incident did not appear to be represented by any legal counsel at the time, even though he was due to appear in Court the next morning. As a self-represented litigant, he was facing-off against the condo corporation and its legal counsel, who were seeking to have him permanently removed from his unit due to his ongoing behaviour. We cannot say for sure, but maybe having an advocate in his corner for that Hearing might have helped avoid the tragedy from occurring in the first place, by serving as a sounding-board or a buffer for his raw emotions. There are very few exceptions to solicitor-client privilege; but if his lawyer became aware that he posed an imminent threat to public safety, then that lawyer might have been able to involve the police and proactively prevented the shooting.
In addition to community safety, having a good advocate on the unit owner’s side also helps save the condo corporation from unnecessary expense, delay, and energy in fighting a self-represented litigant. A lawyer or paralegal who is well-versed in condominium law can help focus the unit owner’s arguments and evidence in a more efficient manner. Many self-represented unit owners tend to undercut their own cases by trying to convince the adjudicator with a novella about the tragedy of their lives – thus burying the essence of their case in too many tangential arguments or irrelevant details. This not only makes the adjudicator’s job more difficult, but also increases costs for the condo corporation; because the condo’s legal counsel now has to wade through all of the extra paper to find the nub of the unit owner’s argument, in order to respond to it.
Even outside of an adjudication – for example, during a CAT Stage 2 Mediation – a unit owner’s advocate can help make it easier for a dispute to be resolved. A unit owner will naturally be unreceptive to the assertions made by the opposing party and even the Mediator – but hearing it from their own side tends to carry more persuasive weight, especially since that advocate is bound by their professional duties to their client.
As a litigator who has represented condominium corporations, unit owners, and sometimes tenants, I have seen how effective legal representation on the “other side” actually helps to preserve community cohesion in the long-run between the parties. The CAO’s mandate is to “support healthy condo communities across Ontario”; as part of that responsibility, the CAO should start funding legal representation for unit owners, if private insurers and public governments do not step up to the plate.
Escalating Cost Consequences for Either Side
In the very least, the CAO should eliminate the CAT’s default no-costs presumption in the CAT’s Rules of Practice – so that even if a litigant is unable to secure funding for a lawyer or a paralegal up-front, the litigant can be reimbursed for their legal fees at the back-end if they are ultimately successful in their claim.
There is a wide variety of self-represented unit owners in the CAT; from first-time Applicants who are pursuing a meritorious claim against their condo corporation, to repeat litigants who bring CAT Application after CAT Application against their condo corporation to see what sticks. Some defendants in the CAT are first-time offenders, who are being enforced against by the condo corporation for the very first time; and others are repeat offenders, who are being enforced against by the condo corporation for yet another violation.
On the other side of the fence, there are some condo corporations in Ontario that do not learn their lesson even after the CAT has reprimanded them the 1st time around. There are some condo Boards who might even weaponize their condo corporation’s legal counsel repeatedly against a unit owner – that unit owner needs a powerful advocate in their corner, to help defend against the unfounded accusations time and time again.
Instead of awarding no legal costs at all, the CAT should have a default regime of cost consequences for either side, on an escalating scale, to help deter repeat litigants (or at least make a party seriously consider whether to file a CAT Application in the first place):
- If you lose on the merits of a CAT Case for the 1st time, then no legal costs are awarded against you (the other side is awarded with 0% of their costs).
- If you lose a 2nd time, then a partial indemnity costs award is made against you (the other side is awarded with 40% to 60% of their legal costs).
- If you lose a 3rd time, then a substantial indemnity award is made (the other side is awarded with 80% of their legal costs).
- If you lose a 4th time or more, then a full indemnity costs award is made (the other side is awarded with 100% of their legal costs).
Access-to-justice is important, and parties should not be prevented from bringing meritorious claims to the CAT; but with such low CAT filing fees and the low risk of any adverse cost consequences against an unsuccessful party, such a low or absent bar against repeat litigants with unmeritorious claims negatively impacts access-to-justice for all. The CAT’s resources are finite, with a limited number of CAT Members to distribute amongst the hundreds of cases that they must mediate and adjudicate each year. Unfortunately, we have seen several situations where a repeat litigant is monopolizing an inordinate amount of time and energy from the CAT staff, Members, Vice-Chairs, and Chair; thereby causing delays and procedural inefficiencies for others in the CAT system.
Perhaps if those repeat litigants were disincentivized by the fear of an adverse costs award being made against them, or were discouraged internally by their own legal counsel from launching their frivolous lawsuit to begin with, the overall civil justice system and the condo corporations who must face the brunt of such unmeritorious attacks could have been spared.
At the extreme, perhaps the lives of several residents in Vaughan would not have been lost, and their families and communities ripped apart, if the self-represented litigant had a lawyer on his side.
The presence of self-represented litigants in condominium law is not going to be eliminated overnight with a one-size-fits-all panacea. But that does not mean we should give up on striving towards the lofty goal of proper legal representation for everyone, especially since the existing model is clearly failing to protect people living in condo communities. The provincial government, the CAO, and the condominium industry all have roles to play in trying to make sure that the tragedy in Vaughan never happens again.
If you have any specific inquiries, please feel free to contact our office or the author of this article at firstname.lastname@example.org or 1-866-446-0811.
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 article is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.