Effective November 1, 2017, new procedures under the amended Condominium Act, 1998 (the “Act”) and amended Ontario Regulation 48/01 will govern how condominium owners, mortgagees and purchasers can examine or obtain a copy of condominium records.
Request and Response to Request
The request must be made in writing on a standard form and should indicate which records are being sought and how the requester wishes to access the records (i.e. hard copy or electronic format or an examination in person.) While the request for records must be solely related to the requester’s interest as owner, purchaser or mortgagee, the requester does not need to provide the corporation with the purpose of the request.
The condominium board of directors must respond to the request within 30 days using a standard form.
(Both of these forms will be posted on the Government of Ontario website, but to date are not yet available.)
In its response the Board must specify for each record requested whether it is a core record, the estimated fee to examine or make a copy of the record and the location where the records would be available for an examination in person. If the Board refuses to provide access to a record it must include in its response the reason for the refusal and specify the provision in section 55(3) of the Act or the regulation on which the Board is basing its refusal decision.
After receiving the Board’s response, the requester needs to send a response confirming which records the requester wants, along with payment of the fee.
Core records include:
- Current versions of the condominium declaration, by-laws, rules and shared facilities or mutual use agreements;
- Current fiscal year budget and any amendments;
- Most recent financial statements and auditor’s report;
- Record of owners and mortgagees;
- Information certificates sent or required to be sent to owners during the preceding 12 months;
- Minutes of owners and board meetings within the 12-month period preceding the records request;
- Most recent reserve fund study plan; and
- Any other record specified in the corporation’s by-law as a core record.
The fee to access the records must be a reasonable fee to reimburse the corporation for the actual labour and delivery costs that the corporation incurs in making the record available for examination or for delivering a copy. Photocopy/printing charges must not exceed 20 cents per page. However, if the request is for a core record, the corporation shall not charge any fee if it delivers a copy in electronic form. If a paper copy of a core record is requested and provided, the corporation can only charge a printing charge. If the requester asks to examine core records in person, the corporation can only charge labour costs for the examination and printing costs. The fee payable for the request will vary depending on a number of factors:
- whether the record requested is a core record,
- whether the corporation keeps the requested record in electronic or paper form,
- whether the request is to examine a copy of the record or to obtain a copy,
- whether the corporation is required to redact any portions of the requested record, and
- the time that the Board estimates spending on the request.
If the actual cost the corporation incurs to provide access to or a copy of records is less than the estimated amount, the corporation is required to reimburse the difference to the requester. If the actual cost is more than the estimated amount, the requester is obligated to pay the difference up to 10% above the estimate.
Where the requester requests or agrees to obtain copies of core records in electronic form the corporation is required to deliver the records within 30 days of receiving the request for records (i.e. the same time as the Board’s response). Paper copies and an in-person examination of core records need to be provided within 7 days of the corporation receiving the requester’s response along with payment of the estimated fee. Access to non-core records need to be provided within 30 days of the requester’s response and payment.
The corporation is not required to provide access to the following records:
- records relating to the corporation’s employees except for employment contracts;
- records relating to actual or pending litigation or insurance investigations;
- records relating to a specific unit other than the records relating to the unit that the requester owns, is purchasing or mortgaging;
- the e-mail addresses of owners and mortgagees unless they have given written consent to provide access; and
- reports or opinions and related communications from lawyers and licensed paralegals with respect to specific units, owners, purchasers or mortgagees
- any portion of a ballot or proxy that identifies specific units or owners unless the corporation’s by-laws provide otherwise.
Penalty for Non-Compliance
A corporation that without reasonable excuse fails to comply with its obligation to permit access to its records in accordance with the legislation would be subject to a penalty of up to $5,000 (considerably higher than the $500 penalty payable under the old legislation) which can be recovered by an action in Small Claims Court.