Condominium Authority Tribunal: Records, Records and More Records

Introduction:

With the changes to the Condominium Act, 1998, S.O. 1998, c.19 (the “Act”) that began rolling out in late 2017, the Condominium Authority Tribunal (“CAT”), a creation of such changes, has now begun to come into its own. Two recent decisions, Arrowsmith v. Peel C.C. No. 94 and Barreto-Rivera v. Metro Toronto C.C. No. 704, highlight the CAT’s willingness to stress substance over form regarding unit owners’ records requests.

Facts:

In Arrowsmith the unit owner requested paper copies of the Minutes of the Board Meetings for the previous twelve months and paper copies of all receipts from contractors provided by those hired to undertake repairs to the common elements. The condominium’s board of directors did not deny that the unit owner was entitled to such records however, denied access on the grounds that the new standardized records request form was improperly completed in failing to name the specific documents requested.
The CAT determined that the mandatory form submitted by the unit owner contained sufficient information to determine the nature of the documents requested. It was then open to the condominium to clarify what specific documents were required; they failed to do so. The denial of the records was found to have no merit.

In Barreto-Rivera the unit owner requested Minutes of an Owners’ Meeting. The request was denied as formal minutes were not taken as the Board considered the meeting to an informal information session where no agenda was circulated and no vote was held however, notes were taken. The purpose of the “information session” was to inform the owners of repairs being done to the windows and give the owners a chance to ask the architect questions.

The CAT found that in correspondence between the Board and the owners regarding the “information session”, the term ‘owners meeting’ was used. Also, due to the fact that expenditures and sources of funding were discussed at the session, this was, in substance, an owners’ meeting, despite the lack of proper form and procedure. Therefore, minutes were required, and if not prepared, the notes made are considered a record of the corporation that require production. As such, the denial of access was unwarranted.

In both instances the condominiums were required to produce the records and pay the costs of the unit owners.

 

Bottom Line:

These cases demonstrate the CAT’s willingness to stress substance over form when it comes to record requests. This seems to be in line with the consumer protection nature of the Act. Should a condominium’s board of directors be presented with record requests from unit owners that may not strictly comply with the either the mandatory forms or the prescribed procedures, where the request is for a permitted record board’s should err on the side of caution and comply with the spirit of the Act and the substance of the request.