CONDOCENTRIC: The Bureau: A Missed Opportunity?

From development to the end-use state, the condominium community is fraught with conflict that must be addressed. What makes this industry ripe for creative, non-litigious dispute resolution is the need for healthy, ongoing relationships among most, or all, stakeholders involved.

Notwithstanding the merits of interest-based mediation, there has been much frustration encountered in its application to community type disputes within condominium corporations.  One manager described his frustration at having a condominium corporation spend in excess of $50,000 to have a dog removed from the building through mediation, then arbitration, then litigation.  By the time the matter did go to court, the owner had moved out and the court chose not to award costs.  Other complaints have arisen concerning the time involved in achieving resolution, as well as the veritable risk of being directed toward a resolution that would not comply with the Condominium Act, 1998 (the “Act”).¹

In discussing alternatives to “formal” mediation with unit owners and managers, reactions tend to range from “Relief” in that there are alternatives to formal mediation available to resolving disputes; to “Interest” in that some alternatives seemed, at first glance, to lend themselves quite readily to condominium disputes; to “Frustration” in that we are still constrained by the mandatory mediation process set out in the Act, which lacks clarity in procedure and certainty in outcome.  While there can be no question that “formal” mediation has a place in condominium disputes, when dealing with disputes such as the removal of a dog, particularly where there are no facts in dispute, a hybrid process, that results, if necessary, in an evaluation being made by a third party may be desirable to achieve a more timely resolution, while overcoming (party) personality barriers that could hinder and delay a purely voluntary, party driven process.

“ADR includes, after all, mediators and arbitrators, but also “med-arbs,” “reg-negs” (regulatory negotiators), ombudsmen, judges engineering settlements in conference or conducting summary jury trials, special masters, conciliators, purveyors of mini-trials, and others…They can focus on interest disputes or rights disputes; they can be paid by the disputants, by third parties, or by programs; they can be professionals or volunteers and the process itself may be voluntary or compulsory.” ²

A hybrid process, combining the self-determination benefits of mediation, with an evaluative alternative if required, is attractive as it may allow the parties in a condominium dispute to have an opportunity to resolve disputes “voluntarily”, rather than having a resolution imposed from the outset, and may serve to satisfy to a greater degree the preservation of ongoing relationships within a condominium corporation.

Under the prior Condominium Act R.S.O. 1990 (the “old Act”), notwithstanding that a condominium corporation had the ability to proceed directly to court by way of summary application, there was contemplation of an alternative method of resolving disputes. Under sections 56 and 57 of the old Act, a non-profit corporation was to be set up (the “Bureau”) for the purpose of (1) advising and assisting the public in condominium matters; (2) assisting in the resolution of disputes between condominium corporations and unit owners and between two or more unit owners and for this purpose appointing review officers and paying their remuneration; (3) disseminating information for the purpose of educating and advising condominium corporations and unit owners concerning condominium matters and the financial, operating and management practices of condominium corporations; and (4) assisting in the formulation and conducting of educational courses for property management.³ The Bureau was intended to be privately funded with contributions from individual condominium corporations.

While the Bureau itself never came into being, some of the goals of the Bureau have, in limited ways, been satisfied through private sector efforts in recognition of the necessity of some of these goals to be achieved. Publications such as the weekly “Condos” section in the Toronto Star serve to educate the public in condominium matters. Organizations such as the Canadian Condominium Institute (“CCI”) organize a series of annual courses on matters concerning the operation of condominium corporations, which are geared toward unit owners and board members. Other organizations, such as the Association of Condominium Managers of Ontario (“ACMO”), in conjunction with Humber College, have formulated educational courses and a program of accreditation for property managers.

However, assistance in the resolution of disputes between condominium corporations and unit owners and between two or more unit owners remains unfulfilled.

If sections 56 and 57 of the old Act had come into force, where there was a dispute between a corporation and an owner or between two or more owners in respect of any matter relating to the Act, the declaration, by-laws or rules, any party to the dispute could, prior to the commencement of any court proceedings, refer the dispute to the Bureau for resolution. Within fourteen days of receiving such notice, the Bureau would give notice as to the date, time and place for consideration of the matter in dispute and designate a review officer. The review officer could inquire on any matter regardless of whether it was brought to his/her attention by the parties. The review officer would then order any party to do or refrain from doing any act that was the subject matter of the review. The order was subject to a 20 day appeal period, which appeal would be made to the Commercial Registration Appeal Tribunal (“CRAT”). Following the appeal period, if requested by any party, the review officer would file a copy of the order with a court under the Statutory Powers Procedure Act. ⁴

Reference to the Bureau was first introduced into condominium law in the 1970’s. When Bill 38 (which ultimately became the Condominium Act 1998) was introduced in 1996, reference to the Bureau had been deleted, and mandatory mediation was introduced. While there are many theories as to why sections 56 and 57 of the old Act were never proclaimed into law, it is not clear as to why they were not considered further and carried over into the current Act.5

Question to ponder: Is it also worth considering the idea of empowering condominium corporations with the ability to issue fines for absolute liability offences in a manner similar to municipalities (e.g. parking tickets)?

¹  This is paraphrased from comments received during Conflict Resolution Workshops run by our office.
²  Luban, D., The Quality of Justice, (66 Denver University law Review, 1989) at pgs. 382-83.
³  Section 56, 57, Condominium Act, R.S.O. 1990 c.C.26 (repealed) – these sections were to have come into force on a day named by proclamation of the Lieutenant Governor. This never happened.
⁴  Section 57, Condominium Act, R.S.O. 1990 c.C.26 (repealed). On April 1, 2000, the Commercial Registration Appeal Tribunal was replaced with the Licence Appeal Tribunal.

From “Common Elements” Fall 2008

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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