Condo Records To Fee or Not to Fee? That is the Question.

By Tony Bui, Gardiner, Miller, Arnold, LLP

The current records request procedure under section 55 of the Condo Act has been around for almost four years now. Still, there remains confusion as to how records requests should be processed. One question we often get is whether the board can charge owners a photocopying/labour fee for records and, if so, how much can they charge?

“It depends” is the classic non-answer to this question.

The answer largely depends on two factors: (1) whether the requested record is a “Core” or “Non-Core” record and (2) whether the request was for a paper copy, electronic copy or examination of the record. Here is a quick summary:

• Core Record; Paper Copy Requested: Corporations can charge a maximum of 20¢ per page. Labour charges are not permitted.
• Core Record; Electronic Copy Requested: Corporations cannot charge photocopying or labour fees. If the Corporation only keeps the record in paper form, but the owner requests an electronic copy, it must provide a paper copy free of charge.
• Core Record; Examination Requested: Corporations can charge a maximum of 20¢ per page and a reasonable estimate for labour charges at $30 per hour  for services such as record redaction or retrieval from archives. The Condominium Authority Tribunal (CAT) confirmed these amounts, which are subject to change.
• Non-Core Records; Paper or Electronic Copy Requested: Corporations can charge a maximum of 20¢ per page for paper copies and a reasonable estimate for labour charges at $30 per hour for services such as record redaction or retrieval from archives regardless of the request format. The Condominium Authority Tribunal (CAT) confirmed these amounts, which are subject to change.

To see how this works in practice, consider this Request for Records for:

• A paper copy of the Declaration: This is a core record. The Corporation can charge 20¢ per page.
• An electronic copy of the Rules: This is a core record. Since the request is for an electronic copy, the Corporation cannot charge a fee; if the Corporation only has a paper copy, it must provide it free of charge.
• In-Person Examination of the owners’ List: This is a core record which may require redaction to remove prohibited information such as email addresses and phone numbers. To do so, we would recommend photocopying the original Owners’ List so redactions can be made in blackline before the record is made available for examination. Therefore, the Corporation can charge 20¢ per page to photocopy the record and $30 per hour to redact the record.

• Electronic Copies of the 2002 AGM package: This is a non-core record. Let’s assume the Corporation only has a paper copy and that the copy is kept off-site at a secure storage facility. Even though the owner requested an electronic copy, the Corporation will need to produce a paper copy. It can charge 20¢ per page as well as $30 for labour to retrieve the record.

And for requests where the Corporation charges for labour upfront, the time spent should be  tracked and provided to the owner in a separate written statement. In some cases, an adjustment may need to be made:

• Owners are entitled to a refund if the time spent is less than the Corporation’s estimate. A common issue we see at the Condominium Authority Tribunal is whether labour charges were “reasonable”.  For example, you need to redact information from proxies and you estimated it would take you 3 hours at $30/hour. You happen to finish the redactions in an hour and a half. The requester is entitled to a $45 refund.
• The Corporation is entitled to a portion of the difference if the actual labour costs are more than the estimate. Within 30 days of receiving the written statement of time spent, the owner must pay the difference between the actual labour costs and estimate and 10% of the estimate/amount paid in advance, whichever is less.  For example, a Corporation provides a 2 hour estimate to produce records at $30 an hour, but spends 3 hours producing the records. There is a $30 difference, but 10% of the total cost for the request (i.e. 10% of $90) is $9. Therefore, the owner is required to pay an extra $9 before receiving its records.

Tony’s Takeaway is that boards and managers should provide reasonable estimates when imposing fees. The fees associated with records requests are not intended to be an income stream for Corporations. Rather, they are intended to offset the time and expense the Corporation reasonably incurs to process the request.

To learn more about what Tony Bui and Gardiner, Miller, Arnold LLP can offer you and your business, go to: www.gmalaw.ca.