In our last column, we announced that, over the coming months, we would share the results of the research conducted by members of the Towards Cyberjustice project. Although this is still planned for future entries, we chose to postpone these posts to take the time to underline an important moment in the field of online dispute resolution (ODR): the launch of Ontario’s first online tribunal, the Condominium Authority Tribunal (or CAT).
According to the 2016 Census, “[t]rends in building permits [in Ontario] indicate that the construction pace of apartments, and especially condominium units, has accelerated since the early 2000s, and that this has surpassed the number of single-detached houses constructed since 2012”. In fact, it is expected that half of all Ontario citizens will be living in condos in the near future, which would more than double the number of “households in condominiums” established in the 2011 National Household Survey (NHS).
In 2015, faced with the rapidly rising number of condominium dwellers (and therefore a growing number of disputes), the Ontario government decided to amend the Condominium Act of 1998 through the passing of the Protecting Condominium Owners Act (PCOA).
It is those amendments to the Condominium Act of 1998 that have been proclaimed to date (through the PCOA) that created the Condominium Authority Tribunal, and that established its powers and jurisdiction. Of all the powers granted to the CAT, one of the most interesting – for the purpose of our topic of interest – is the one stated in section 1.40 of the Condominium Act of 1998, i.e. the CAT may encourage the use of alternative dispute resolution (ADR) mechanisms:
1.40 (1) Despite section 4.8 of the Statutory Powers Procedure Act, the Tribunal may direct the parties to a proceeding to participate in an alternative dispute resolution mechanism for the purposes of resolving the proceeding or an issue arising in the proceeding. 2015, c. 28, Sched. 1, s. 6.
(2) In this section, “alternative dispute resolution mechanism” includes mediation, conciliation, negotiation or any other means of facilitating the resolution of issues in dispute. 2015, c. 28, Sched. 1, s. 6.
Of course, the idea of allowing for ADR is nothing new under Canadian law. The Quebec Code of Civil Procedure favours that route, and certain courts and tribunals across the country have done the same. However, where most view ADR as a parallel system that is prior to – and outside – the normal judicial process (hence the term “alternative”), the CAT innovated by bringing ADR to every stage of its process, from party-to-party negotiation through to decision by a tribunal member.
Of course, this is but one facet of the Condominium Authority of Ontario’s bold vision for the new tribunal. What really sets the CAT apart from most other Canadian courts and tribunals is the fact that it has no hearing rooms, no chambers, and no waiting room… It is a completely digital endeavour, cutting down on real-estate costs, and bringing access to justice to condo dwellers through their computers, tablets and smartphones.
As per the CAT’s website:
“The Condominium Authority Tribunal, or the CAT, is a new online tribunal that helps to settle and decide condominium-related disputes in Ontario. The CAT has developed an online dispute resolution system (CAT-ODR) to help people resolve their disputes conveniently, quickly and affordably, while encouraging everyone to work together in healthy condominium communities.
As of November 1, 2017, anyone with a dispute about the records of a condominium corporation in Ontario can file a case at the CAT. Records disputes are covered by section 55 of the Condominium Act, 1998.”
The CAT-ODR system, which we are proud to have had a hand in helping the Condominium Authority of Ontario create (the system was built on open source applications developed by the Cyberjustice Laboratory), follows a three-step process: After creating his or her account, the user will be guided through a negotiation phase where both parties will be encouraged to settle their dispute by posting proposals to one another to help find a solution. Should this fail, the platform will assign a mediator to help facilitate the negotiation process.
These first two steps were inspired by the Platform to Aid in the Resolution of Litigation electronically (PARLe) developed by the Cyberjustice Laboratory for a pilot project with the Consumer protection Agency in Quebec. The PARLe project has just celebrated its first birthday, and the statistics couldn’t be more encouraging: Almost 70% of the more than 1300 cases filed through PARLe in its first year were settled. Furthermore, satisfaction rates with the process range from 86% (for merchants) to 96% (for mediators). Consumer satisfaction is at 89%. Although the types of disputes handled by PARLe and the CAT-ODR platform are quite different, the process remains very similar. Therefore, we have high hopes that statistics for the CAT will be comparable to those seen above.
In other words, the CAT’s first two steps follow tried and tested methods that should help settle many disputes amicably – something that is extremely important when talking about disputes implicating condo owners who are often neighbours or a condo corporation and its owners.
As for the third step, unlike the PARLe project, which is outside the established legal process, the CAT-ODR platform allows parties for whom mediation failed to ask for an online hearing “in front of” a tribunal member tasked with rendering a decision through the platform. This decision-making phase allows the member to manage the schedule, obtain documents, and even hear witness testimony electronically. It’s creation is the result of collaborative research and analysis over many months by the CAO’s team and their partners (including the Cyberjustice Laboratory).
Visionary endeavours like the CAT and other similar initiatives like the Civil Resolution Tribunal in British-Columbia are wonderful examples of how ODR can be used in a way to facilitate true access to justice through virtual means. We can only hope that they are successful, and that said success will encourage other tribunals to migrate towards the online environment for the benefit of litigants and administrators alike.