Blog PostSeptember 2, 2020 - Educational
Crawling Back Quickly – Justice, Condo Disputes and the Pandemic
As with so many other services, our courts were (and still are) severely impacted by the COVID-19 pandemic. But like so many businesses and sectors, the pandemic brings rapid change and evolution in how condo legal work gets done. Condo corporations, boards, managers and owners can expect major changes soon.
The immediate impacts of the pandemic were sudden and profound. The nearly complete shut-down of the system meant hearing dates set long ago were vacated, filing counters were closed and starting new cases in certain lines was disrupted. Advancing existing cases was nearly impossible. The impact of those initial weeks and months has created a major challenge for many months to come.
Among government’s first responses to the pandemic was to suspend the running of limitations periods. The usual 2-year limitation period to file lawsuits after an incident stopped counting on March 17, 2020 and will not restart until September 14, so condo corporations with claims must recalculate when their claims expires, having regard to this nearly 6-month suspension. And during this time, the usual 20 days for responding to or defending new lawsuits has also been suspended. This has prevented most new cases from advancing.
After the initial shock from the shutdown subsided, and with the help of legal groups like the Ontario Bar Association who provided online facilities and expertise, the courts began conducting video conferencing to help judges advance existing cases and hear urgent new cases. Many types of cases started being heard entirely by electronic means, which was completely unthinkable in January.
Online filing of claims in new lawsuits, which first rolled out in 2015 in small claims court and in 2017 for Superior Court, has expanded quickly since the pandemic struck. And the Superior Court very recently launched a new method for major documents for hearings to be accepted online, eliminating the need for paper copies and facilitating hearings by electronic means. Even lawyers are pleasantly surprised by how quickly our traditional old-court system has progressed, and this is thanks largely to massive investment by Ontario’s Ministry of the Attorney General.
Despite the remarkable and long-overdue modernization of our courts, some aspects remain seriously affected and will be slow to recover. Enforcing condo liens by taking possession of units, for instance, is still largely non-functional. With the suspension of limitation periods and many statutory deadlines, defendants or respondents need not respond to most court documents until mid-September.
And lien enforcement is impacted further by the fact that sheriffs who conduct evictions only very recently resumed their work, only to face major backlogs from a large number of residential tenancy evictions that will take longer to enforce for the foreseeable future.
Remote witnessing of wills and commissioning of affidavits also advanced quickly since March, and many changes are becoming permanent. The age-old, inefficient process of appearing before a commissioner of oaths to swear an affidavit is now modernized by permitting virtual appearances, which not only allows physical distancing but provides greater convenience to persons (like condo managers or directors) who must swear affidavits in support of legal cases without a trip to the lawyer’s office.
Mediation and arbitration, as private dispute resolution processes, pivoted nicely to the change as they were already more flexible than court. Mediators and arbitrators quickly began conducting their cases virtually, which permitted cases to advance safely but also much quicker and way more conveniently. The pandemic shows us that now, more than ever, mediation and arbitration have an important role in handling various types of disputes efficiently.
Let’s not forget the CAT. As an online-only tribunal, the Condo Authority Tribunal has been largely unaffected and has continued to accept new cases and advance them. Modelled after British Columbia’s Civil Resolution Tribunal, an online body that hears a variety of cases including strata, motor vehicle injuries and small claims, the CAT is well-poised to relieve some of the burden from the traditional court system and deliver justice faster and cheaper. Until now, the CAT handles only condo records cases, but was envisioned and created to handle many more types of condo disputes.
Not surprisingly, even before the pandemic, government was planning to bring noise and nuisance cases into the CAT’s jurisdiction, to help stem the flow of such cases to the courts. But after hearing concerns from CCI, ACMO and other groups about it being too early to bring a large volume of those complex cases to CAT, government recently announced that only disputes over pets, parking and storage issues, as well as chargebacks related to those specific disputes, will start being heard by CAT as of October 1, 2020.
This is a good, gradual escalation of CAT’s jurisdiction and provides all stakeholders with the opportunity to test the waters and for CAT to iron out bugs and ramp up its capacity to hear a much larger volume of different sorts of cases. More lines of cases will come before long and we will learn many lessons from how these new disputes are handled, and this will influence how we manage other types of disputes.
There are still many lingering concerns about how CAT handles cases and especially how cost-recovery for a successful condo corporation is almost non-existent. Avoiding disputes altogether and handling the unavoidable ones as inexpensively as possible will present a major challenge for condo corporations. Much study, work and advocacy remains to be done, but it is safe to say that times are changing quickly, and there is no doubt that the CAT will one day handle more condo cases that have traditionally been heard by courts.
2020 will go down in history for many reasons, like being a year of profound change for our justice system, and it is bringing new challenges into how disputes are raised, handled, settled and adjudicated.
Chris Jaglowitz, J.D. ACCI
Principal, Common Ground Condo Law