Simon's Megalomaniacal Legal Resources

Condos - Procedural Conflict

One annoying feature of modern-day legal culture is to split decision-making amongst several bodies (aka 'tribunals'). The Condominium Act, 1998 is no exception - with the CAT, arbitration, Superior Court all competing as candidates. This gives rise to (IMHO) a wholly unnecessary and wasteful body of law in resolving which body you should take your problem to, even before you get to the merits of your case.

. Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636 (II)

In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636 (II) (Ont CA, 2021) the Court of Appeal considered whether oppression claims in a condo context may only be heard by the court:

[25] In our view, courts should generally be cautious in their approach to oppression claims of the type asserted here. In particular, courts should be wary of allowing such claims to overtake, and potentially distort, the dispute resolution process that lies at the heart of the Condominium Act, 1998, a central aspect of which is a preference for arbitration over court proceedings. In other words, courts should be alert to the possibility that persons, who are party to an arbitration agreement, are attempting to avoid that process by "piggybacking" onto claims made against others: see e.g. MTCC No. 965 v. MTCC No. 1031 and No. 1056, 2014 ONSC 5362, at para. 18; see also TELUS, at paras. 76, 98.

[26] In considering this issue, the motion judge erred in his interpretation of the oppression section of the Condominium Act, 1998. Assuming that any aspect of the dispute between the parties falls within the scope of s. 135 of the Condominium Act, 1998, a question that we do not determine here, we do not agree with the motion judge that such a claim can only be determined by a court.[2] In his reasons, the motion judge said, at para. 40: “Further, as set out in s. 135(1), applications under this provision can only be brought before this Court.”

[27] Section 135(1) reads:

An owner, a corporation, a declarant or a mortgagee of a unit may make an application to the Superior Court of Justice for an order under this section.

[28] The language of s. 135(1) is permissive, not mandatory. It contemplates that, in certain circumstances, it may be necessary to have resort to the Superior Court of Justice to obtain relief. However, s. 135(1) does not oust the jurisdiction of an arbitrator to consider the same relief, if that relief is part of the dispute in question that properly falls within the terms of the arbitration provision or within the terms of s. 132. In this case, we have already noted the broad language of the arbitration clause. There is nothing, in our view, that would preclude an arbitrator, acting under the authority of that arbitration clause, from considering the alleged oppressive conduct advanced by the respondent in appeal, at least as it relates to the actions of TSCC 1636.

[29] In saying that, we are aware that the dispute, at least insofar as the oppression claim is made, includes parties that may not technically be parties to the arbitration process. We say technically because it is not entirely clear, from the relationship between the parties and their status, whether they might fall within the ambit of the arbitration clause, or otherwise be subject to arbitration under s. 132 of the Condominium Act, 1998. We repeat that the emphasis in the Condominium Act, 1998, through s. 132, is on the resolution of various different forms of disputes by way of arbitration. ...