Many good managers and directors have been pulled into the black hole that is record requests under the amendments to the Act. Since November 1, 2017 there is a new process for requesting records and providing copies or access to them. Unfortunately, the new process is complicated and time-intensive, which will likely to lead to more disputes than the old process.
Types of Records
There are now two types of records: core and non-core records. The Act and regulations define core records as:
- Declaration, by-laws, rules
- Shared facilities agreement
- Current budget
- Latest financial statements and audit report
- Most recent reserve fund plan
- Record of owners, mortgagees, and leased units
- Periodic information certificates from the last 12 months
- Minutes for owner or board meetings (from the last 12 months) held after Nov. 1, 2017
- Any other record specified by by-law as a core record
Every other record is considered a non-core record.
The type of record (i.e. core and non-core) is important for determining the timing for providing copies or access to records and the costs that may be charged.
The Act and regulations have described a new complex process for fulfilling record requests, including prescribed forms, defined timelines, and the maximum fees that may be charged by the condominium. The basic steps are:
- Request: The person submits their request on the new prescribed form;
- Board’s Response: The condominium must respond using the prescribed response form, which includes the estimated fees (if applicable) and any reasons for not providing a record (i.e. does not exist, not entitled to access it);
- Requester’s Response: The person responds using the prescribed form to confirm the records they still want to access and they pay any applicable fee;
- Access and Accounting: Access to the record is provided. If the fee paid by the owner is more than the actual cost, the condominium returns the excess to the owner. If the actual cost is more than the fee paid by the owner the condominium may demand further payment, up to a maximum described in the regulations.
Fortunately, the government has prepared guides to assist people in making and responding to record requests. There is one for core records and one for non-core records.
It is important for the condominium to reply to requests quickly. The requester can file a complaint to the CAT and the penalty for failing to provide a record without a reasonable excuse has increased from $500 to $5000.
The Act and regulations also describe the retention periods for records. Most records must be retained for a period of at least 7 years, but some must be kept indefinitely (i.e. declaration, by-laws and rules). Proxies and ballots may be destroyed after 90 days. The retention period must be extended in some circumstances, such as where an owner makes a request for the record or the record is relevant to actual or contemplated litigation. Practically speaking, all records should be kept indefinitely to provide the best level of protection to the condominium. This can easily be accomplished with electronic methods to reduce the storage space and costs associated with document storage and retrieval.
The condominium may maintain the records in paper or electronic format. There are different requirements depending upon the method the condominium chooses. For instance, for electronic records, it must be easily accessible, stored with a password or other method to prevent unauthorized access, and have a backup method to prevent loss or damage of the records. For paper records the condominium must keep them at the property or at a local reasonably close to the property that allows the condominium to carry out its objects and duties.
Positive Change for Owners?
The amendments were designed to address a problem, but it was only a problem for a very small percentage of owners as most condominiums provide access to records when requested without much difficulty or cost to the requester. The only saving grace? The amendments permit the condominium and requester to agree to modify the process. For some, this might mean a simple email exchange instead of following the new process with the cumbersome prescribed forms.
What do you think? Do you like the new record request process?