Owners are entitled to examine records of the condominium. Subsection 55(3) of the Condominium Act, 1998, gives owners the right to examine or obtain copies of the condominium’s records, subject to certain limits described in subsection 55(4). Subsection 55(4) excludes certain records, including records related to other owners or units and records “relating to actual or contemplated litigation”. These provisions are designed to balance the competing interests of the owners and protect the condominium’s interests.
The Condominium Authority Tribunal (CAT) has been asked to adjudicate several matters related to record requests for opinions and other communications from the condominium’s lawyer. We discuss two of these cases today.
The first case was reported in 2019. The owner sought copies of all legal invoices that referenced the owner’s unit. The condominium refused the request because the invoices were privileged since they contained summaries of the legal advice given to the condominium. The condominium also claimed that the invoices were exempt from the owner’s right to examine records by subsection 55(4) of the Condominium Act, 1998, specifically because they were records related to actual or contemplated litigation.
The case includes an interesting discussion about waiver of privilege. The condominium sent a letter to the owners that disclosed that it had sought legal advice concerning 28 record requests received from a “small group” of owners and the advice was sought to determine if the requested records must be produced. The condominium also disclosed that it had paid over $17,000 in legal fees for the advice. The CAT member found that by disclosing this information the condominium had waived privilege in relation to the information provided to owners. This meant that it had waived privilege over the invoices that were included in the $17,000 figure. The condominium did not disclose what the lawyer’s legal advice was in relation to the record requests, so that information remained protected by solicitor-client privilege.
The CAT member found the owner was entitled to the invoices that referenced the unit, subject to the condominium’s right to redact information that was still protected by solicitor-client privilege.
The second case was recently reported in 2020. The owner sought legal opinions about the authority of the condominium to add costs to the common elements of individual unit owners for violations or alleged violations of the rules. The condominium claimed that the records were protected by solicitor-client privilege and were also precluded from disclosure by subsection 55(4) of the Condominium Act, 1998. The owner argued that the condominium waived privilege by its partial disclosure of the advice it received.
The CAT member found that the opinions were protected by solicitor-client privilege as the condominium had not waived privilege. The condominium made comments indicating that the lawyer reviewed the contested rules and found them to be in compliance with the law, but these comments were not specific enough to constitute a waiver of privilege.
The CAT member found that subsection 55(4) of the Act did not preclude disclosure of the records because the condominium did not make the claim at the time of its response to the owner’s request. The condo “may not claim the benefits of hindsight in these circumstances. [the condo] did not claim the subsection 55(4)(b) exemption at the time of its response to [the owner’s] record request. I conclude that it would be inconsistent with the records request provisions of the Act to permit it to claim the exemption retroactively.” As such, the condominium could not rely upon subsection 55(4) of the Act to avoid disclosure of the records to the owner.
Which prevails when there is a conflict between solicitor-client privilege and subsection 55(4) of the Act? The CAT member found that subsection 55(4) of the Act does not extinguish solicitor-client privilege. As a result, the condominium was not required to produce the opinion to the owner as solicitor-client privilege remained intact and was not waived by the condominium.
Lessons: Solicitor-client privilege is broader than subsection 55(4) of the Act. Solicitor-client privilege may be asserted over a variety of communications with the lawyer, including letters, emails, and invoices for services rendered. Condominiums must be careful when disclosing information related to communications with the condominium’s lawyer as it could be a waiver of privilege. If the condominium receives a record request for records related to communications with the condominium’s lawyer, it should seek legal advice about its obligations. When charging an owner for legal costs (i.e. for a rule violation), do not simply attach a copy of the invoice to the letter informing them of the amount claim. At a minimum, the condominium should redact the privileged information in the invoice before producing it.