Unit owners occasionally request records about past and current litigation. This can happen in the context of a condo’s AGM, a debate with management or a seemingly benign records request. When is it okay to provide such records?
The CAT recently clarified that when litigation is settled or fully concluded and the record is not solicitor-client/settlement privileged, a record may be examined and produced: the fact that the record relates to litigation is not a reason to refuse access.
The backdrop of this decision is s. 55(4) of the Condo Act.
Section 55(4) of the Condo Act excludes: “records relating to actual or contemplated litigation, as determined by the regulations, or insurance investigations involving the corporation” from production and inspection.
“Actual litigation” means a legal action involving a corporation.
“Contemplated litigation” means any matter that might reasonably be expected to become actual litigation based on information that is within a corporation’s knowledge or control.
However, the CAT also recognizes that there may be privilege that comes with a court proceeding. “Solicitor-client privilege” protects a relationship and is permanent. “Litigation privilege” ensures the effectiveness of the adversarial process, is temporary and lapses when litigation ends.
The CAT determined that if litigation has ended or there is no longer a reasonable expectation of litigation, section 55(4) of the Condo Act no longer applies. The exception may continue to apply if the record is subject to solicitor-client privilege, a confidentiality provision or settlement privilege.
Consider the CAT’s checklist when allowing or denying a litigation record request:
- Is the record protected by solicitor-client privilege?
- Is there actual litigation or a reasonable prospect of litigation?
- Has the litigation concluded?
- Is the record covered by settlement privilege or a confidentiality provision?
The “open book” of condo records should otherwise be respected. If a requested record can be excluded based on the above factors, be sure to give the reason for exclusion in the board’s response.