Tribunal decision · Ontario CAT

Traicheff v. York Condominium Corporation No. 43

2024 ONCAT 1 · January 2, 2024 · Notice voided

TL;DR

ONCAT imposed a $1,000 penalty under s.1.44(1)6 on a corporation that initially refused the Arrears Report (claiming confidentiality) and shared-recreation-facility minutes (claiming they were not corp records). The decision is a key reference for the principle that the board cannot abdicate records-process responsibility to its management company: 'as an agent of the corporation, any failure on behalf of a condominium manager is not an excuse for the condominium itself.' The tribunal also ordered mandatory Module 8 director training under s.1.44(1)7 and directed posting of compliance notice within the building.

Why this matters for Alberta owners

TL;DR: Boards love to point at their property manager when something goes wrong with a fine notice or records request — something along the lines of 'we hired professionals, our manager handled this, blame them.' Traicheff says that defence doesn't work. The Ontario tribunal imposed a $1,000 penalty plus mandatory director-training orders on a board that tried exactly that argument. The principle is portable to Alberta: if your fine notice has procedural defects, it doesn't matter whether the manager or the board personally drafted it — the corporation owns the defect, and the board owns the corporation.

The facts. Mr. Traicheff was a unit owner in York Condominium Corporation No. 43. In July 2022 he submitted a records request for ten different records, including periodic information certificates, board minutes, the corporation's audited financial statements, the landscaping contract, and an audio recording of the May 2022 AGM. YCC43 partially responded, partially refused, partially provided wrong records. The corporation's defence at the tribunal was essentially that its outgoing property manager (Ace Condominium Management) had mishandled the request — citing a manager transition, a manager-employee who had since left the company, and lost institutional knowledge as reasons the corporation could not fully comply or explain what happened to specific records.

What the tribunal held. Member Roth was unimpressed. The load-bearing holding is at paragraph 30: "YCC43's approach to responding to records requests appears haphazard and uninformed as to its legal obligations. The board is required to oversee its condominium manager. Ultimately, as an agent of the corporation, any failure on behalf of a condominium manager is not an excuse for the condominium itself." The Member then ordered a $1,000 penalty under s.1.44(1)6 of the Ontario Condominium Act for two records that had been refused without reasonable excuse — the January 2022 LVRC meeting minutes and the AGM audio recording. Each of the current board directors was ordered to take or retake mandatory director training (Module 8: Corporate Records) within 30 days. The corporation also had to post a notice of the tribunal order in a visible public place within the building within 60 days.

The one place a manager-transition excuse DID work. Member Roth distinguished between the records the corporation simply mishandled (no excuse) and one record that was genuinely lost in a manager transition. The lost third-quarter 2021 Periodic Information Certificate was treated differently. Citing Mehta v. Peel Condominium Corporation 389, 2020 ONCAT 9, the Member accepted that a record genuinely lost due to a prior management company's error can be a reasonable excuse for non-production — the corporation simply cannot produce a record it does not have. The distinction matters: 'the manager lost it' can be a reasonable excuse for ONE specific lost document; 'the manager was bad at their job' is NOT a reasonable excuse for systemic non-compliance with records-disclosure obligations.

Why this matters in Alberta. Same principle, different forum. When an Alberta corporation issues a fine notice with procedural defects under CPR s.73.7 — missing required fields, wrong response deadlines, no bylaw citation — the CDRT will not accept 'the property manager prepared the notice' or 'the manager left and the new firm doesn’t have the records' as substantial-compliance arguments. The corporation chose to delegate the work to that manager. The board's statutory duty to ensure compliance with the Act and bylaws runs to the corporation, not the manager. If the manager botched the fine notice, that's the corporation's defect on the notice, and the CDRT's substantial-compliance + prejudice framework applies to the notice as issued — not to the notice the manager should have issued in some hypothetical world where they'd done it right.

What board accountability looks like in Alberta. Traicheff's order package is instructive. Beyond the $1,000 penalty, the Ontario tribunal ordered the directors themselves — not the corporation, the individual directors — to complete records-training. It also ordered public notice of the order to be posted inside the building so all owners would see the corporation had been found non-compliant. The Alberta CDRT under section 35 of the Condominium Property Act has analogous authority to award penalties and direct compliance, and the same structural relief — penalty plus director-training order plus public notice — is available when a corporation's defence amounts to 'the manager did it.' For owners whose fine notices were generated through a management company that's clearly not on top of CPR requirements, this is the relief structure worth asking for.

Action steps for owners

What to do if you're the owner. If your corporation defends a defective fine notice by pointing at the property manager, three responses follow from Traicheff. First, name the defect by content ('this notice is missing the required CPR s.73.7 field for X'), not by attribution ('the manager forgot to include Y'). The CDRT's analysis is about what the notice says, not who drafted it. Second, ask in writing whether the board reviewed the notice before it was sent and what oversight process they have for management-drafted fine notices. The absence of any oversight process is itself evidence that the corporation is delegating its statutory duties in a way Traicheff says it cannot. Third, if the corporation cites lost or unavailable records during your dispute, distinguish Mehta-style isolated losses (genuinely reasonable excuse) from systemic non-production (Traicheff-style refusal). The board can lose one document; it cannot run an entire records-disclosure regime that depends on a manager who never produced anything.

The bottom line: a corporation cannot hide behind its property manager when its fine notices are defective. The board's statutory duty runs to the corporation, and the corporation is liable for the defects in the notices it issues — regardless of which agent drafted them. Run FineCheck on the notice itself; if the corporation's defence is 'our manager handled it,' Traicheff is direct Ontario authority that the defence fails.

What the tribunal said

Selected excerpts from the Ontario CAT's reasoning. Full decision on CanLII.

[14] ... The Respondent never took the position that these minutes were not records of the corporation. This is consistent with the finding in El Naaj v. Peel Condominium Corporation No 35, 2012 ONCAT 5: 'There is nothing in the Act which excludes records related to shared facilities from the records an owner is entitled to access. ... It is reasonable that records related to the management of the facilities governed by a mutual use agreement also form part of the records of the corporation.' [30] YCC43's approach to responding to records requests appears haphazard and uninformed as to its legal obligations. The board is required to oversee its condominium manager. Ultimately, as an agent of the corporation, any failure on behalf of a condominium manager is not an excuse for the condominium itself. The Applicant's concern about how YCC43 is responding to records request is well-founded. ... [36] With respect to the lost third quarter PIC, the Respondent argued it did not intentionally withhold the document. It referred me to Mehta v. Peel Condominium Corporation 389, 2020 ONCAT 9, where the Tribunal accepted that it was a reasonable excuse to not provide a record which was lost due to an error by a previous management company. I accept that this record was likely lost by the time that the Applicant made his request, and this is a reasonable excuse.

Connects to FineCheck's framework

Got a similar Alberta condo fine? A FineCheck report applies the same substantial-compliance + prejudice framework the tribunal used here. $15. Run a check on your notice →

Jurisdictional note: Ontario CATdecisions are not binding on Alberta's CDRT, but the CDRT will look to other Canadian condo tribunals for guidance under analogous statutory provisions until its own case law develops. The substantial-compliance + prejudice framework used in this decision parallels the test in CDRT Policies and Procedures s.7(b).

Decision date: January 2, 2024 · Citation: 2024 ONCAT 1 · Outcome: notice voided. FineCheck's commentary is published for research and educational use; not legal advice. Verify any reliance on this decision against the original text.