Part 1 – Introduction
In this article, we examine a recent access to records case from the Ontario Condominium Authority Tribunal (CAT), entitled Currie v. MTCC 973, 2025 ONCAT 180, in which a unit owner was found to be a “vexatious litigant”.
This article discusses Ontario condominium law and is written for information purposes only. The content of this article does not constitute legal advice.
Part 2 – What is a vexatious litigant?
A vexatious litigant means that a party was found by the court to have commenced legal proceedings for an improper purpose, i.e. to “vex”, or frustrate, the other party. Stated differently, vexatious litigants are those who seek to weaponize the court or tribunal process to achieve an ulterior goal.
Part 3 – Why was Mr. Currie found to be a vexatious litigant?
Mr. Currie commenced numerous applications at the CAT in a single year relating to records. In the course of these applications, Mr. Currie continuously raised allegations of fraud and other misconduct that were separate and distinct from any legitimate desire to examine condominium records.
The result was that the condominium was forced to participate (spending time and money) defending numerous CAT cases that had very little, if any, merit. The Tribunal concluded that unless a vexatious litigant order was granted, Mr. Currie’s improper conduct was likely to continue.
As a result, the CAT ordered that Mr. Currie was prohibited from commencing future CAT applications against his condominium corporation without first obtaining permission from the tribunal. Mr. Currie was also ordered to pay $6,000.00 in legal costs to the condominium corporation.
Part 4 – Discussion: The Incentivization of Vexatious Litigation
On November 1, 2017, a new “consumer protection” scheme came into effect that was intended to improve transparency with respect to condominium records. The underlying philosophy was that condominium records should be an “open book” that any unit owner can reasonably examine, upon request.
Prior to that date, records disputes were litigated in the Ontario Small Claims Court and there were only about a dozen reported decisions over a span of more than 16 years. By comparison, over the last 8+ years, there have been hundreds of published cases relating to owners suing for access to condominium records.
As anyone who reads these records cases can plainly see, in the vast majority, these are not really disputes about owners wanting to examine records. Rather, they have become a forum of convenience for unit owners to express all manner of other grievances.
How did it all go so wrong?
In the writer’s view, the current litigation crisis is primarily the result of two main factors:
- The penalty for failing to provide records was increased from a maximum of $500 to a maximum of $5,000, which created a financial incentive for owners to pursue litigation.
- The CAT has been reluctant to order meaningful reimbursement of legal costs when unit owners commence meritless litigation against condominium corporations.
By creating a strong financial incentive to sue condominium corporations for access to records, and by removing the risk of having to pay legal costs if you lose, the Legislature inadvertently caused a litigation crisis, which continues to unreasonably burden condominium managers and boards of directors.
The Ontario government could help solve this litigation crisis in the following ways:
- Reduce the maximum penalty for failing to provide records upon request from $5,000.00 to $1,000.00.
- Amend the CAT’s rules to create a presumption that reasonable legal costs will be ordered against an unsuccessful party. This will help disincentivize meritless, nuisance litigation.
- Employ a qualified person to “pre-screen” all applications to ensure that they fall within the CAT’s jurisdiction, and to remove all issues where the CAT lacks jurisdiction from consideration before the respondent is given notice of the application.
Part 5 – Concluding Tips for Condominium Boards and Managers
There are several steps that condominium corporations can take to help protect themselves from the administrative burden of responding to requests for records:
- Condominium corporations can use internal websites to proactively distribute “core” records, especially board meeting minutes.
- For non-core requests for records, condominium corporations are entitled to charge reasonable fees for labour and photocopying. Condominium corporations should avail themselves of this right and should employ third parties to respond at the requesting owner’s cost. Condominium management companies should include reasonable fixed fees for responding to non-core records requests in their management contract, which fees are to be collected from the requesting owner. This will help ensure that requests for records do not exhaust limited management resources and that both the requesting owner and the condominium corporation are treated fairly.
Finally, condominium corporations should seek legal advice before rejecting an owner’s request for records. Seeking legal advice at an early stage will help prevent mistakes and avoid costly litigation.