We hear complaints about the new record request process regularly from our clients and owners. The process is cumbersome with the new prescribed forms and timelines. The process takes longer than it did before in many cases (in part because it takes time for people to fill out the forms correctly). Many clients are confused about when they can and cannot charge the requester for labour and copying charges. All of these feelings are completely normal.
The regulations are confusing. Parts described in ten pages could have easily been described in one or two pages if charts were used instead of long, repetitive paragraphs referring the reader to check various other sections of the Act and regulations before they can determine the answer to what was a seemingly straightforward question. Before you know it you’ve spent 20 minutes trying to figure out the answer to a question that used to take 2 minutes.
There is a solution to all your record request problems: The condominium and owner can agree to modify the process. Hooray!
As you may know, the right to examine records and obtain copies of them is described in section 55(4) of the Act. The process used is not described in the Act itself; the process is described in the regulations. See sections 13.1 to 13.12 of Ontario Regulation 48/01 for the process for addressing record requests.
Section 13.9 of the regulation states that the person making the request and the condominium can agree that the condominium will permit the examination of the records without following the formal process. There is a prescribed form for this purpose (are you surprised?). The waiver form contains the following:
An example might help illustrate the benefits of this method over the formal process.
An owner requests a copy of the minutes of the last board meeting. The minutes of the last board meeting would be a core record. The formal process would start with the owner filling out the prescribed request form. The condominium would have 30 days to respond using the response form and advise the owner of any applicable fees. The owner would respond to the condominium’s response (note: if they don’t respond within 60 days or file with the CAT the request is deemed abandoned). Within 7 days of receiving the owner’s response and payment (if applicable) the condominium would deliver a copy of the minutes to the owner. This process could take several months.
In the alternative, the owner and condominium could agree to modify the process by using the prescribed waiver form. They could agree that the condominium will provide copies within 4 days via email at no cost. This process could take less than a day within minimal communications if the condominium and owner.
Where the waiver form is used the owner is deemed to have waived the right to object to the failure of the condominium to comply with the requirements of the Act and the regulations in responding to the request. This means the owner can’t agree to modify the process and turn around and start a claim with the Condominium Authority Tribunal (CAT) claiming compensation because the condominium did not use the formal process. The owner may also be able to start a claim with the CAT if: 1) the condominium denies the request or redacts the record (unless the owner provided a written statement to the condominium that clearly waived the right); or 2) the condominium fails to comply with the terms agreed upon in the waiver form.
Here is a copy of the waiver form: May_2018_Waiver_by_Requester_of_Records
All of the above aside, I know plenty of condominiums reply to emails requesting a record with a simple “here you go” and attach the record.