Are emails between directors a record of the condominium? The CAT says…

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Can owners request copies of emails between directors? Can the condominium refuse a record request because the owner’s reason for requesting the records is apparently unrelated to their ownership interests? Must the owner prove their reason is related to their ownership interest, or is the onus on the condominium to prove the reason is unrelated to the owner’s interests? These are only a few of the questions recently answered by the Condominium Authority Tribunal (CAT).

Kai Sin Yeung v. Metropolitan Toronto Condominium Coporation No. 1136 

An owner requested emails related to the renewal of a gas contract referenced in board meeting minutes. The owner wanted a penalty and costs of the hearing. The condominium claimed that the emails do not exist, but even if they existed the owner would not be entitled to them.

The member found that the emails were not records the owner was entitled to under the Act. The member found that a reference to a decision made by board members via email (and ratified at the meeting) was not sufficient to qualify the emails as a record of the condominium. The member suggested that the result may be different in another case, such as where the emails were attached to the minutes as a schedule. Since the emails did not form a record of the condominium, the owner was not entitled to access them and the condominium was not obligated to maintain them.

Notwithstanding the finding that the owner was not entitled to access the emails, the member awarded the owner their costs of $200 in bringing the application. The primary reason for the award was the condominium’s delay in responding the the owner’s request for records.

Key points: 1) emails exchanged between board members are not (under normal circumstances) records of the condominium; 2) the condominium does not have an obligation to maintain emails exchanged between directors (although it may be wise to do so in some cases); and 3) the condominium must reply to the owner’s request within the prescribed time or the tribunal may award costs against the condominium even if it is successful in defending its decision to refuse the owner’s request.

Sohail Benjamin v. Peel Standard Condominium Corporation No. 1008.

The owner requested several records from the condominium. Most were provided, but the condominium did not provide the periodic information certificate for the first quarter, the auditor’s report for 2017/2018, and several contracts. The condominium denied the request because it felt that the owner’s request was not solely related to the owner’s interest as a unit owner. The owner sought costs and a penalty for the condominium’s refusal. The member found in favour of the owner.

Once the owner confirmed on the request form that the request was related to their ownership interests, the onus of proving it was not fell to the condominium. In this case, the condominium was unable to prove its case. The condominium made several allegations of misuse of previous records by the owner. The member found that there was no evidence of most of the allegations; there were only suspicions. While the owner may have been disruptive or difficult, that alone (if established) was not enough to deny him access to the records.

As such, the owner was entitled to the records requested. The condominium was directed to provide the records in electronic format, at no charge, and if paper copies were required the condominium could only charge $0.20 per page for photocopying in accordance with the regulations.

The owner was also awarded costs of $200 (the filing fees), but none of the $3,000 he sought for representing himself. (Note: the condominium apparently spent $24,000 on the application, which the member referred to as “straightforward”). The condominium was ordered to pay a penalty of $500 because it refused the owner’s request for the periodic information certificate without reasonable excuse. At paragraph 42:

The non-existence of the record is due solely to a failure to comply with a clear and unequivocal legal obligation; there is no reasonable excuse for the refusal on these facts. Therefore, a penalty in this case is justified.

Key points: 1) if a condominium plans to allege that an owner’s request for records is unrelated to his or her ownership interests there must be more than mere suspicions; 2) the fact that the owner is difficult or disruptive is not reason alone to refuse the owner’s request; and 3) the non-existence of a record is not a reasonable excuse for refusing an owner’s request when there is a clear obligation to maintain the record and the condominium has failed to do so.

Stay tuned for more CAT decisions!

As always, please let us know if you have a topic or issue that you would like us to write about in a future post.