CONDOMINIUM AUTHORITY TRIBUNAL
DATE: August 9, 2019
CASE: 2019-00127SA
Citation: Susan Ruuska v Brant Condominium Corporation No. 35, 2019 ONCAT 28
Order under section 1.44 of the Condominium Act, 1998.
Member: Marc Bhalla, Member
| The Applicant Susan Ruuska |
Self-Represented |
| The Respondent Brant Condominium Corporation No. 35 |
Marianne Detmar, Agent |
Hearing: July 15, 2019 to July 31, 2019, Written online hearing
REASONS FOR DECISION
A. OVERVIEW
[1] The Applicant is a non-resident unit owner of Brant Condominium Corporation No. 35 (“BCC 35”). The Applicant entered into a Settlement Agreement with the Respondent on June 27, 2019 (the “Settlement Agreement”). The Applicant claims that the Respondent has not complied with the Settlement Agreement. The Applicant seeks reimbursement of $150 of filing fees paid to access the Condominium Authority Tribunal (the “Tribunal”).
[2] The Respondent claims that it has complied with the Settlement Agreement. The Respondent seeks recovery of its legal costs, related to complying with the Settlement Agreement.
[3] Many submissions by the Applicant and the Respondent are beyond the current jurisdiction of the Tribunal or the scope of this case.
[4] I find that the Respondent did not comply with the Settlement Agreement as it missed the deadline to do so. I order that the Applicant recover $125 of filing fees from the Respondent.
B. ISSUES AND ANALYSIS
[5] There were two issues to be determined in the hearing: (1) Did the Respondent comply with the Settlement Agreement? and (2) Is the Applicant entitled to recover $150 paid in filing fees?
Did the Respondent comply with the Settlement Agreement?
[6] The settlement proposed by the Applicant and accepted by the Respondent states:
Brant Condo Corporation #35 [sic] will give Susan Ruuska a copy of the Record of Owners and Morgagees [sic] by July 10, 2019.
[7] On June 27, 2019, the Respondent provided the Applicant with a list of owners (the “List of Owners”). The List of Owners did not provide complete service addresses.
[8] The Respondent claims that it thought it had complied with the Settlement Agreement by providing the List of Owners to the Applicant. I am not persuaded by this submission. The Settlement Agreement refers to a Record of Owners and Mortgagees. The phrase “Record of Owners and Mortgagees” is used as the heading of s.46.1(3) of the Condominium Act, 1998 (the “Act”). This is a core record as set out in s.1(1)(7) of Ontario Regulation 48/01. It is among the most standard of records that condominium corporations are required to keep.
[9] The Applicant expected service addresses for non-resident unit owners of BCC 35 and emailed the Respondent twice on June 28, 2019 to express this.
[10] Unknown to the Applicant prior to the hearing, the Respondent took steps to address the Applicant’s concerns with the List of Owners. This included seeking legal help to prepare the Record of Owners and Mortgagees.
[11] The Settlement Agreement does not call for the Applicant to pay any legal fees of the Respondent in relation to the preparation of the Record of Owners and Mortgagees.
[12] During the hearing, the Record of Owners and Mortgagees was provided by the Respondent and listed service addresses for each owner of BCC 35.
[13] The Record of Owners and Mortgagees listed unit addresses as the service addresses of all unit owners, including for seven units that are not owner-occupied among the 36 units comprising BCC 35.
[14] The Applicant disputed the accuracy of the Record of Owners and Mortgagees. The Respondent claimed the non-resident unit owners provided their unit address as their service address.
[15] The Respondent indicated multiple times that it primarily communicates with owners by email. The Record of Owners and Mortgagees does not indicate that any owners agreed to a method of electronic communication as stated in s.46.1(3)(d) of the Act.
[16] Email communications shared between the Applicant and the Respondent include the Applicant’s address, which is not their condominium unit’s address. A mailing address listed in the signature of an email is not notice to a condominium corporation to update its record as set out in s.46.1(3)(b) of the Act.
[17] The Respondent may have been aware that the Applicant did not live in their unit, yet there is no evidence to suggest that the Applicant provided clear notice of their service address to BCC 35.
[18] Emails exchanged between the Applicant and the Respondent in December 2018 suggest that the Applicant did not want to receive mail from the Respondent at their condominium unit’s address. Yet, the evidence falls short of offering clear notice to BCC 35 to update the Applicant’s address for service in its records.
[19] During the hearing, the Respondent confirmed that it was updating the records of BCC 35 to reflect the service address the Applicant desired, which is not the Applicant’s condominium unit’s address.
[20] The Respondent suggests that all other unit owners provided their unit address as their service address and stated: “A person does not have to live in a unit to keep it as a service address.”
[21] Section 46.1(3)(b) of the Act requires a condominium corporation to keep a record of the address for service a unit owner provides if an owner provides an address for service and the address is in Ontario.
[22] There is no required connection between an owner’s service address and their place of residence. The Respondent is correct that a non-resident unit owner could have their unit as their address for service regardless of if they live in their unit.
[23] The Applicant’s concern surrounds the service addresses listed for other non-resident owners. There is no evidence to support any other non-resident owner giving notice to BCC 35 of an alternate service address than listed in the Record of Owners and Mortgagees.
[24] I find that the Settlement Agreement called for the Records of Owners and Mortgagees to be provided by July 10, 2019. The Respondent did not comply with the Settlement Agreement as it did not meet this deadline.
[25] I accept the Respondent’s submission that any error in the Applicant’s service address listed in the Record of Owners and Mortgagees provided on July 22, 2019 has since been corrected. No evidence before me suggests that there is any other deficiency in the Record of Owners and Mortgagees.
Is the Applicant entitled to recover $150 paid in filing fees?
[26] Filing fees paid are $25 for Stage 1 – Negotiation and $125 for Stage 3 – Tribunal Decision.
[27] A $25 filing fee for Stage 1 – Negotiation (“Stage 1”) was paid by the Applicant to open Tribunal Case #2019-00113R. It was in that case that the Settlement Agreement was reached. The Settlement Agreement does not refer to this fee. It could have been negotiated into the Settlement Agreement. I see no grounds to reimburse the Applicant this $25 filing fee.
[28] After July 10, 2019, the Applicant had the right to file this case for an order requiring compliance with the Settlement Agreement. The Applicant paid the $125 filing fee for Stage 3 – Tribunal Decision (the “Stage 3 Fee”) on July 12, 2019, before the Respondent provided the Record of Owners and Mortgagees. This is the only cost I find the Applicant incurred as a result of the Respondent’s delayed provision of the Record of Owners and Mortgagees.
[29] In the case of Clyde Rogers v Niagara North Condominium Corporation No. 131, 2018 ONCAT 13 (CanLII), the Tribunal considered delayed delivery of records listed in a settlement agreement. A distinction surrounds the timing of the condominium corporation’s delivery of records. In this case, it was only after the hearing started that the Respondent provided the Applicant with the Record of Owners and Mortgagees.
[30] The Applicant paid the Stage 3 Fee after the deadline listed in the Settlement Agreement passed. While the Respondent took steps to address the deficiency in the List of Owners, it does not appear this was communicated to the Applicant.
[31] The condominium director participating for the Respondent recently lost a family member. This contributed to the delay in providing the Applicant with the Record of Owners and Mortgagees. While this did not affect the Respondent’s responsibilities, I offer condolences to the director and their family.
ORDER
[32] The Tribunal orders that, pursuant to s.1.44(1)(4) of the Act, the Respondent is to pay the Applicant costs in the amount of $125. In the event that the full amount is not provided to the Applicant within 30 days of this Order, the Applicant is entitled to set-off all remaining amounts due against the common expenses attributable to the Applicant’s unit(s) in accordance with s.1.45(3) of the Act.
______________________
Marc Bhalla
Member, Condominium Authority Tribunal
Released on: August 9, 2019