Legal Updates – Condominium Record Access

Condo record management

Condominium Record Access – What Is & What Is Not Allowed

By Tony Bui and Andrea Lusk of Gardiner Miller Arnold LLP

The Ontario Condominium Authority Tribunal (“CAT”) was established in 2018, initially to deal with requests for condominium records. CAT decisions over the years have addressed the typical scenarios that arise, giving condo boards a considerable amount of predictability in responding to records requests. Still, we continue to see broad, improper, or dubiously motivated requests.

At its core, the records request process is intended to promote transparency and provide an “open book” into the condo’s affairs. Naturally, that can only be achieved if owners can examine the condominium’s records. This also imposes an obligation on condos to keep “adequate” records. But it is important to note that the Act does not provide a blanket right to any and all condo records.

As a starting point, records requests must be “solely related to that person’s interests as an owner, a purchaser or a mortgagee of a unit, as the case may be, having regard to the purposes of the Act”. However, all a requestor needs to do is simply check off a box on their Request for Records affirming this is the purpose of their request. Virtually every request will check this box and there is nothing further required from the requestor. This presents practical problems, as we discuss below.

Similarly, requesting records is exactly as it sounds: the request must be for records. Submitting a records request to demand information, responses or answers from the board is not a proper “purpose of the Act.” Boards are entitled to reject such requests.

McCoy v. SCC 119 is a CAT decision from March 2024 that deals with these points. The CAT recognized an “open book” principle to condominium records, but it carefully upheld the board’s decision to reject some of the owner’s requests as they were overly broad and sought information. The owner requested a host of items it believed were records, but the CAT ruled that not every document a corporation receives or produces must be kept as a record and that a request for information is not a record. The Act provides owners with other opportunities, such as the corporation’s Annual General Meeting, to ask for information. The CAT also considered whether records are “adequate” or not. It acknowledged that “adequate” is not defined in the Act but relied on previous decisions to note that the requirement for “adequacy” confirms a tolerance for a degree of imperfection. Here, the owner argued that the requested meeting minutes were inadequate because there were gaps in dates relating to a building project; as examples, the owner argued that the minutes did not mention work stoppages or a leak she reported.

The CAT concluded that this complaint was with the management of the project versus a concern with adequate record-keeping. For example, the owner raised other unrelated complaints about how the board transacted business, why it made certain decisions, and its communication style: these were deemed “governance issues”, not “record keeping issues” and therefore outside of the scope of the CAT’s jurisdiction.

The decision then dealt with the “purposes relating to the Act” checkbox on the Request for Records form. Here’s where the condo got itself into some hot water: when it received the records request, management asked the owner to re-confirm that the request was made for “purposes relating to the Act” and sign a statement that they would not redistribute or publish the records. The owner argued this restricted her access to records. Though the CAT held that she was not required to sign the statement, it disagreed that this request “restricted” her access, noting:

…All owners would be entitled to receive the records Ms. McCoy is entitled to receive. In [a previous decision, the CAT wrote]:

As unit owners have a general right to communicate with one another in regard to matters and information of concern relating to their shared property and interests, I find that the Applicant is entitled to share with other unit owners the information she learns upon examination of the requested records.

However, Ms. McCoy was not required to sign the statement as a condition of receiving the records; it did not restrict her access to the records, rather it appears designed to restrict her use or to prevent her misuse of them.

So, what are boards to make of overly broad requests that cast as wide of a net as possible (also known as “fishing expeditions”)? In Skoczylas v. PSCC 954, an owner requested the condo’s core records. These are key documents that should generally be provided without debate, such as the Declaration, By-laws and Rules. As well as “all non-core records from 2000-2023”; non-core records are essentially any records that are not core records. The CAT came out of the gates determining that the owner received the records he was entitled to but that the rest of the request was unreasonable.

Taking a broad view of the matter, the CAT found no evidence that the board was generally remiss or lacking in recording other decisions it made during this period, such as that failure to mention the items. The owner didn’t help their case when they repeatedly raised irrelevant operational issues, requested the CAT order the condo to change its management practices (e.g. implementing online portals and high-speed scanners), alleged issues with the information in the records and not the record itself, and persisted in doing so despite being asked to stop by the CAT.

The CAT awarded the condo $4,000 in costs, a rarity considering the CAT typically declines to award costs, even to successful parties and referred to a previous decision, concluding that the owner’s request was “overly broad, lacks specificity, is focused on finding imaged wrong-doing, and meets the general definition of a ‘fishing expedition.’

These two cases provide helpful guidance for requestors and boards to submit and respond to records requests, respectively. Requests for records should request actual records (not information), be sufficiently clear (not merely a catch-all request for everything the condo has in its possession) and most importantly, they should be for a proper purpose under the Act (not to dictate how a corporation is governed). A slip-up on any of these points could jeopardize a records request and result in an expensive, and time-consuming CAT application.

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