On April 11, 2019, I wrote about some of the Condo Authority Tribunal (CAT) decisions so far. Some of the highlights include the dismissal of claims that were vexatious, the adoption of the “open book” principle enumerated in previous case law, and confirmation that owners may access the list of owners. You can read the post here. The CAT has been busy since my previous post, releasing another 16 decisions in the last four months! Here are some of the highlights for these recent cases:
- Email addresses of owners do not form part of the record of owners and mortgagees maintained according to s.46.1 of the Act. Owners are not entitled to access email addresses of other owners.
- Emails exchanged between directors are not records of the condominium and owners are not entitled to receive copies of them. The CAT member indicated that this might not always be the case, such as when emails are attached to board meeting minutes.
- Once the owner confirms on the record request form that the request is related to their ownership interests, the onus of proving it is not made according to their ownership interest falls to the condominium.
- The non-existence of a record is not a reasonable excuse for refusing an owner’s request when there is a clear obligation in the Act or regulations to maintain the record and the condominium has failed to do so. Penalties and costs can be awarded where a condominium fails to maintain a record that it is required to maintain according to the Act or regulations.
- Owners are not entitled to “in-camera” minutes from board meetings unless the minutes relate to their unit. In some cases redaction may not be sufficient to protect the privacy of the other unit owners and a condominium may be justified in not providing the entire record.
- The amount of redaction required may depend on the circumstances surrounding the request, such as the number of units in the condominium, the record requested, and the requester’s knowledge surrounding the record. In this case, the former director knew most of the owners and would be able to discern more information from redacted records so it was appropriate not to provide a copy (even redacted).
- Management reports may not be a record of the condominium until approved by the board.
- Notes made by directors at meetings are not normally records of the condominium, but they may become part of the records if the directors agree to include the notes with the minutes.
- The CAT will award a penalty of $2,000 (or more) where the condominium refuses to participate in the process. The CAT members are will penalize condominiums who ignore their obligations so it is best to comply as soon as possible.
- If an owner sells his unit before the CAT process is completed the condominium can bring a motion to have the application dismissed on grounds that the person is no longer entitled to obtain copies of the records under the Act.
- A condominium may redact sign-in sheets, ballots, and proxies from AGMs to remove identifying information about the owners and units (unless a by-law has been approved by the owners to permit disclosure of some of this information).
- Owner have brought motions to have their names removed from or not reported in decisions. The CAT will only make this order if it is necessary to protect important interests. So far the CAT has declined to do so.
- Where a party does not comply with a settlement, the CAT can award a penalty and costs. It did so when a condominium did not comply with a settlement that required it to produce certain records. The owner was awarded $5,597 in costs and a penalty of $750 was ordered.
These recent cases, like previous ones, highlight the importance of the parties actively participating in the process, including monitoring the file on a daily basis. Ignoring the process will have costly consequences.