Approximately two months have passed since the CAT’s jurisdiction expanded beyond condo record requests to include disputes regarding, pets, parking, vehicles and storage and chargebacks related to such issues. However, the CAT has yet to release a decision dealing with these new topics. It may take some time for cases involving expanded jurisdiction issues to wind through the CAT’s online dispute resolution system. In the meanwhile, enjoy Part 2 of our deep dive into record disputes (Part 1, here).
Nakashima v MTCC 818
Being short-staffed after the office administrator’s departure does not justify delay in responding to an owner, which delay constituted a records request refusal. Where the owner made his record request by hand-delivery to the corporation’s office administrator, the owner had no reasonable grounds to presume the request would not be passed on to the board, and the owner was not responsible for the administrator failing to do so. The corporation is solely responsible for managing its internal communications and other administrative processes.
Gendreau v TSCC 1438
The Personal Information Protection and Electronic Documents Act (“PIPEDA”) does not apply to record requests. A board must be reasonable when carrying out its duties to redact records, where redaction is required as a result of a record request exception under the Condo Act. It is sometimes evident from the nature of a requested record whether it may contain information that should be redacted. Any record that the corporation has already made available to owners in an unredacted form should not require review for redaction simply because it becomes the subject of an owner’s subsequent records request. Although a board has a general statutory duty to protect certain categories of record or information from being disclosed in response to a records request, there is no requirement to submit every record requested to formal review for redaction to fulfill this duty. It is not reasonable for a corporation to charge a requester of records a fee for redaction work, when there is no clear statutory justification for it considering the nature and likely content of the records in question.
Landau v MTCC 757
The “actual or contemplated litigation” exception under the Condo Act is not sufficiently specific to extinguish solicitor-client privilege for the purpose of record requests. Solicitor-client privilege applies separate from the exemption in s. 55(4)(b). The corporation’s lawyer did not waive privilege when the lawyer spoke at an owners meeting. Only , a client may waive privilege, and inviting the lawyer to speak did not constitute a waiver of privilege for all communications between lawyer and client on the subject. The property manager is not acting as an authorized officer for the corporation and cannot waive privilege. The owner’s comments that the corporation’s action could lead to “expensive legal battles” or were “just asking for problems” were not sufficiently explicit to give rise to a reasonable concern that the owner was contemplating litigation. It was not until the owner informed the corporation that she would consider an application to the CAT that the corporation might reasonably have expected the matter to become litigious. While s. 55(4)(b) does not express a timeframe for the exemption from the plain wording of the provision, a corporation may claim the exemption at some point after preparing the requested records but the time to claim the exemption cannot be open-ended. In the present case, the corporation could not claim the exemption retroactively where the 30-day period for it to respond to the owner expired and where the corporation was faced with the real possibility of a records application to the CAT.
Tahseen v MTCC 818
Requesting records is not a commercial transaction. The Act does not call for owners to pay a fee for every record they request. When fees apply, they must be reasonable and represent actual costs of the corporation. PIPEDA does not apply to record requests under the Act. The owner was entitled to share information contained in the requested records with other owners, where the corporation raised no objection that the owner should be prevented from doing so. The owner has a right to the AGM Attendance List and Proxies in a form that does not identify owners or their units. The corporation was entitled to a fee for the cost of redacting the AGM Attendance List and Proxies. The owner has a right the Record of Owners and Mortgagees without redaction of the names of owners, their units and addresses for service.
Emerald PG Holdings Ltd. v TSCC 2519
The owner was entitled to the settlement decision to which the corporation was a party. In this instance, a confidentiality clause in the settlement decision, could not take precedence over the disclosure requirements of the Act to refuse disclosure to an owner for whose benefit the proceeding (concerning the declarant’s accountability for the first-year budget statement) was initiated. The owner is not entitled to a record that does not exist (in this case, a consent agreement). A fee of $30/hour was reasonable for redaction work.
Sinclair v PCC 3
An owner’s entitlement to records is not restricted by whether the record is specifically identified in s. 55(1) of the Act and s. 13.1(1) of the O. Reg. 48/01. All records of the corporation may be subject to a request for disclosure under s. 55(3) of the Act. The CAT refused to order any fee for labour where the corporation neither requested a fee when the records were requested, nor provided any justification for the costs during the hearing. The corporation must maintain and provide access to records, even if the board is having trouble managing its affairs. Where the corporation never explicitly refused the records request, but where several (7) months elapsed since the request and the corporation failed to provide records or any justification, this constituted a refusal without any reasonable excuse.
Brown v PCC 21
Where the owner’s request for records was not sufficiently specific, the CAT declined to order production. An owner’s entitlement to records is not dependent on the owners ‘good standing’ regarding payment of contributions to common expenses. An owner breaching a condo document provision (in this case, advertising their unit on Airbnb) does not disentitle the owner from the records requested.
Kulik v YRCC 772
Although not a direct refusal, the corporation requesting payment before allowing access to the record and failing to respond to the owner’s follow-up letter constitutes a refusal. The corporation’s past practice was to request payment for access. This is not a reasonable excuse. The property manager failing to provide the owner’s follow-up letter to the board constituted a lack of attention and diligence, and not an honest or unintentional error, resulting in a denial of access.
Yeung v MTCC 1136 (#2; for #1, please see Part One))
The CAT does not have jurisdiction under s. 55 of the Act to decide whether records contained errors based on the owner’s interpretation of the information required therein or whether PICs were delivered to all owners on time.
Lagan v CCC 331
Draft minutes of meetings (i.e. that have not been approved by the board) do not form part of a corporation’s records, and therefore the corporation did not have to provide a copy of them to the owner. A corporation’s manager and board must exercise judgment in applying the Act’s exemptions (in this case, regarding redactions). Where there was a subsequent revision of a redaction of one item in the record, this did not amount to the corporation refusing to provide the owner the record. Where a record was not produced until mediation, this amounted to the corporation refusing, albeit temporarily, to provide records. Administrative oversight is not a reasonable excuse in the corporation delaying providing a record.
Mehta v PCC 389 (#3; for #1 and #2, please see Part One)
The CAT cannot assist an owner in enforcing an order from a previous case. An owner must enforce an order through either the Small Claims Court or Superior Court of Justice. Issues regarding honesty and transparency of the corporation’s board, improper condo governance and fiscal impropriety are beyond the scope of the CAT’s jurisdiction. The CAT can neither order access to a record that does not exist, nor order a corporation to create a non-existent record.
Gilmour v YCC 299
The CAT dismissed the matter as abandoned where the owner did not provide submissions, did not respond to any messages and direction and repeatedly failed to take the actions required to actively participate in the CAT process.
Yeung v MTCC 136 (#3)
The corporation has an obligation to keep the Record of Owners and Mortgagees as accurate as possible. However, this does not impose a standard of perfection. How much inaccuracy may be tolerated before a record is rendered inadequate for a corporation to fulfill its duties and obligations? A reasonably high standard and expectation for accuracy should be applied for board meeting minutes. Owners are entitled to expect that the minutes correctly describe the procedures followed by the corporation’s board when transacting the business of the corporation. The ultimate responsibility for adequacy, including accuracy, of records rests with the board. Where the board relies on third-party professionals or other contractors, it must do so in good faith. The CAT has jurisdiction to order the corporation to correct an inaccuracy in the board meeting minutes
He v WSCC 541
Prior conduct of the owner is not enough to apply the contemplated litigation exception; litigation must be contemplated directly in relation to the underlying subject matter of the present records dispute. The corporation is entitled to redact minutes related to the contemplated litigation. The CAT found that a $60 hourly rate (and not the corporation’s requested $95 hourly rate) was reasonable as the property manager’s fee for redacting the records.