Don’t Forget the Accompanying Statement!
Records requested by owners are often redacted as they contain unit-specific information, information pertaining to employees, litigation, or solicitor-client privilege.
Pursuant to section 55(4)(c) of the Condominium Act, 1998 (the “Act”), the right to examine or obtain records of a corporation do not apply to:
- Records relating to employees of the corporation, except for contracts of employment between any of the employees and the corporation;
- Records relating to actual or contemplated litigation, as determined by the regulations, or insurance investigations involving the Corporation;
- Records relating to specific units or owners; and
- Any prescribed records.
In addition to the exceptions noted above, in Reva Landau v. Metropolitan Toronto Condominium Corporation No. 757, the Condominium Authority Tribunal (the “CAT”) found that solicitor-client privilege applied to communications between a corporation’s board of directors and its lawyers. The CAT held that the owner was not entitled to the requested record based on the common law principle.
In some situations, we have seen records excessively redacted. For instance, block redactions in board meeting minutes.
In Mellon v Halton Condominium Corporation No. 70, the corporation redacted entire paragraphs of board meeting minutes. The CAT found that, in some instances, corporations may redact information, apart from names and unit numbers, that is personal, confidential, privileged or otherwise private, that would serve to identify the unit or unit owner.
However, the CAT ultimately found that the redactions should be restricted to information that is considered reasonably likely to identify another owner or unit. It is imperative for corporations to diligently review what should or should not be redacted from records and, when in doubt, contact the corporation’s legal counsel for advice.
In other circumstances, we have seen records redacted in a manner that it is almost impossible to determine whether something was redacted, or the area is simply a blank space. This often leads to confusion and owners believing that the records have been overly redacted. A preferable approach would be to redact records in a manner that clearly shows what was redacted or not – for instance, using a black marker/blacked out area.
Finally, the most often overlooked requirement in any records request that involves redactions – the accompanying statement. Subsection 13.8(1) of the Reg. O. Reg. 48/01 provides that corporations are required to deliver a separate statement outlining the reasons for the redactions required and an indication on which provision of subsection 55(4) of the Act the board is relying on. For instance, if a corporation is redacting unit numbers from board meeting minutes or invoices, a statement should be provided to the requester explaining that the redaction was necessary as it pertained to an individual unit or owner per subsection 55(4)(c) of the Act. The CAT has previously held that a simple email would suffice.
Failing to provide an accompanying statement is a breach of the Act and could result in a penalty awarded against a corporation should the matter proceed to the CAT.
Record requests are never fun to respond to and appear simpler than they are. Sometimes its better to get legal advice on a records request earlier rather than having to engage legal counsel late in the game to defend an application before the CAT.
