Most  condos  now conduct business through electronic meetings, which can be recorded by the host.  Meeting recordings are not a novel concept but our recent dependence on electronic meetings has given them new life.  Minute takers have historically recorded in-person meetings to aid in accurate minutes and to best recall the details of important discussions.  Similarly, an electronic meeting recording can serve the same purpose – ensuring accuracy and transparency in meetings where there is a broad interest to owners but owners can’t attend in the traditional sense.  We are never against something that promotes but also clearly memorializes (hopefully) fair process.

The electronic condo meeting and recording should be for the benefit of the condo and its owners.  To ensure that, we’ve developed  best practices for electronic meeting recordings, which can translate to in-person meetings too.

Participants should be informed that the meeting is being recorded

As a matter of procedure and courtesy, the meeting package might note that the meeting will be recorded. The meeting chair should still notify participants that the meeting will be recorded at the start of the meeting so participants are informed and can opt-out of the recording, as discussed below.

Give participants an opportunity to opt-out of recording

Participants should be able to opt out of the recording, primarily by withholding their participation, muting microphones or disabling video functions. To clarify, this does not mean participants who opt-out of the recording must leave the meeting or cannot participate in the meeting – rather, they can view/listen to the meeting and vote such that their participation won’t show up on the recording.

You’re probably asking, “What if I want to ask questions but don’t want to be recorded? Won’t there be a recording of my question?”  The answer is, yes: if you ask a question at a meeting using your microphone and the meeting is being recorded, there will be a recording of your question.

These concerns are valid but there is ultimately no significant difference between an audiovisual recording of the meeting and reproducing a rough transcript of your question in written meeting minutes. This is why meeting minutes are fundamentally important for condominium corporations: the minutes allow owners to review important discussions and transactions concerning the condo they all have a collective interest in. It would be absurd for owners to raise questions at an AGM or vote on motions but ask that their questions/motions be omitted from the minutes; this goes against the principles of transparency and democracy. Therefore, while owners are entitled to stay silent at an AGM, they cannot have it both ways: they cannot ask questions and ask to be excluded from a properly recorded public meeting.

Inform participants that no recording by other means is permitted

If the meeting will be recorded by the official host, the chairperson should confirm that owners may not make their own recordings. While this does not prevent owners from making their own recordings, if all owners abide by the chairperson’s declaration that only the corporation may record the meeting, this sets up a fair framework to ensure the meeting recording is properly handled.  This also minimizes the concern that the recording and discussions are distributed to those who are not entitled to receive a copy.

Dealing with objections to recorded meeting

Unless a condo’s by-law prohibits meeting recordings, the meeting chairperson can allow recording as a standard procedural matter. The chairperson can justify the need for a meeting recording if it is strictly for Condo Act-related purposes such as producing meeting minutes or a corporate record of the AGM.

But how do we deal with owners who submit a formal records request for the recording? Given that people are understandably sensitive about their likeness (whether in video or audio) being distributed, there is currently no “one size fits all” answer.

We can’t forget the context in which meeting recordings are produced nor can we forget that the legislative intention of the records request provisions in the Condo Act is to promote transparency. By analogy, owners’ meeting minutes are produced from communications at an open forum where owners are encouraged to make candid and public comments on matters affecting the condominium at-large while stating their name and unit number for the record. Indeed, the doctrine of qualified privilege is intended to protect owners who do so.

Viewed through this lens, is there a really a distinction between meeting minutes and meeting recordings? We’ve heard the argument that with respect to minutes, owners can expect to have their comments noted in writing and they implicitly consent to doing so but the same does not apply with recordings.  We agree, at this stage.   A recording of a meeting should be not be disseminated unless there is a clear and unequivocal consent by the owners at the meeting (and not just a notice that the meeting will be recorded) that the meeting recording may be  examined or produced to other owners.

Wherever the answer lies, it isn’t helpful to simply say “recordings contain information pertaining to other owners/units and they cannot be produced”. After all, owners receive the draft minutes from the prior year’s annual general meeting in their meeting packages and these draft minutes do not redact other owners’ names or unit numbers. There is no speculation as to who is making a submission at an owners’ meeting or who the intended recipients are: owners are making submissions to other owners, about matters that affect other owners.  If an owner raises unit-specific issues, they do so under the implicit understanding that their comments are voluntarily shared with those in attendance (namely, fellow owners) who may later request a record of the meeting capturing such comment; owners who raise unit specific issues at the AGM are also typically reminded to contact management about such matters, as the purpose of the AGM is to openly discuss common elements, assets and general condominium business. In short, concerns of privacy and confidentiality – while legitimate – are significantly relaxed at an owners’ meeting.

When in doubt, be transparent, democratic and open: defer to the meeting chair on practice; ensure owners have ways to be “heard and not seen” in the electronic meeting context.  Use the meeting recording as an internal tool, not to be distributed without the meeting’s knowledge.