Addressing Feedback on the Condominium Dispute Resolution Model

In circulating the Condominium Dispute Resolution Model (the “Model”) submitted by the Dispute Resolution Sub-Committee formed by the Joint Government Relations Committee of the Association of Condominium Managers of Ontario and the Toronto & Area Chapter of the Canadian Condominium Institute (the “Sub-Committee”), it is inevitable that there will be questions, criticisms, concerns and even compliments in response. What follows are replies to some of the feedback received about the Model.  

“It would appear that early intervention and education are the two keys to a more cost efficient and more effective dispute resolution model…I like the way model #2 is laid out.”

Indeed, early intervention and education go hand in hand in the course of managing condominium community conflict. Unfortunately, all too often we experience condominium disputes that escalate due to a lack of understanding by one or more parties involved. This can apply to all members of the community - property managers, directors, unit owners, residents, etcetera.

“Big Government is not justified in view of the small number of condo cases that go to court… Property Managers and Board members would still resolve 99% of all disputes, as they do today.”

The purpose of the Condominium Dispute Resolution Officer (“CDRO”) is to provide a neutral third party from outside of the community to address conflict in the early stages and help guide resolution. Similar to the role of the auditor, the CDRO is elected by unit owners and is available as a resource to them. While property managers and directors currently do address a great deal of conflict, their ties to the community often give rise to perceptions of bias which can serve to escalate conflict. 

During a discussion of the Model and its application amongst members of the ADR Institute of Ontario, a perspective shared was that more condominium disputes would be recognized and have a chance of being addressed sufficiently. Currently, Ontarians do not have clear guidance on how to address condominium conflict, as there is not a consistent process for addressing such disputes across the province. The Model both provides the needed consistency and recognizes that there is an opportunity to address condominium conflict early to preserve harmony within the community.

“Fines: this is a very slippery slope. I would prefer that municipalities have this power, not condo corporations who are quite likely to look at this as a revenue generator.”

Appropriate Dispute Resolution tools are not limited to mediation and arbitration. Deterrents such as fines can be effective in managing conflict proactively.

The topic of fines was a hotly contested area of discussion amongst members of the Sub-Committee, including the unit owner representatives who raised concerns about the potential for abuse. Condominiums are effectively a fourth level of government yet are not equipped with the powers that governments have to exercise their authority. It is for this purpose that fines have been proposed under very strict guidelines and restrictions. 

Fines would act as a deterrent against minor infractions which otherwise go unaddressed or escalate and become time consuming and costly. Municipal parking fines are a case in point. Signs are posted to inform drivers where they may not park. If a driver chooses to park incorrectly, they risk being fined. A typical fine is approximately $30.00. Knowledge of the parking rules and the threat of the parking fine serves as a deterrent to manage the conflict. If a driver chooses to challenge the fine, the driver has the right to do so. However, it remains that fines are a tool used to manage the underlying conflict. 

“For their part, owners need to be more engaged and accept a greater degree of responsibility for the good governance and management of the community, including participating in AGMs”

Some condominium communities are challenged to have enough unit owners participate in their annual general meetings to allow them to proceed with quorum (usually 25% participation is required). There has been much discussion about the opportunity to better inform unit owners at the purchase stage, so they have a better idea of what they are getting themselves into – both in respect of the particular condominium community and their obligations and responsibilities as a unit owner.

“Adjudication Tribunals have an advantage over the courts. They possess specialized knowledge and are less formal – can be set up not to require lawyers or agents. Tribunals can offer quicker decisions, can address power imbalances and include internal appeal on merits and through courts of law.”

There has been suggestion of a formation of a condominium-focused tribunal to address condominium disputes. Notwithstanding concerns raised by members of the Sub-Committee that similar tribunals have rendered inconsistent decisions and have proven to be no more timely than the courts (i.e. The Ontario Human Rights Tribunal often requires over a year to see through a matter), perhaps the greatest challenge is cost. The single constraint placed upon the Sub-Committee in developing the Model pertained specifically to a limit on possible funding. 

The Sub-Committee was weary about any suggestion of removing a disputant’s right to legal counsel, particularly as many recent condominium cases involving unrepresented parties appear to have been entirely avoidable had legal advice been obtained. Further, if anything, the Model looks toward providing parties in conflict with guidance earlier on to avoid unnecessary escalation, focusing initially upon the interests of the parties, before falling back on an ­­­­­­assessment of rights if resolution proves evasive.

“How will the CDRO be disclosed or made known if one is not appointed?”

In order for the CDRO to serve his/her role, it will be important for all members of the condominium community to be aware of who they are and how to contact them. In the course of further developing and implementing the Model, consideration will need to be provided as to the appropriate means of managing and circulating such information, which could form part of a condominium’s required annual filing and be attached to the Notice of Annual General Meeting.

The Model can be viewed at www.CondoConflictManagement.com and additional feedback provided by e-mail to feedback@elia.org.

The replies presented in this article are the independent views of the authors and not necessarily the view of the entire Dispute Resolution Sub-Committee. Some questions/comments have been paraphrased to address space limitations.

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.

www.elia.org  

© Elia Associates Professional Corporation, All Rights Reserved.