Decisions from the C.A.T.: Are Email Addresses A Record?

As the Condominium Authority Tribunal (CAT) continues to develop, decisions are being made that provide guidance to Boards of Directors in the day-to-day operation of their corporations. In Samuel v. Metropolitan Toronto Condominium Corporation No. 979 & 989, 2019 ONCAT 9, the CAT determines whether unit owners’ email addresses form the content of the Record of Owners and Mortgagees and whether such addresses are producible to the owners.

After a long and drawn out battle, the CAT determined that email addresses of owners do not form the content of the Record of Owners and Mortgagees and, as such, are not producible for examination by individual owners.

Facts

Samuel owned a parking space in one condominium and a residential unit in another. Samuel requested a copy of the Record of Owners and Mortgagees (the Record) from both condominiums and it was provided to him. Upon review, Samuel noticed that the email addresses were absent. The condominium’s senior property manager informed Samuel that there is no obligation to provide email addresses to owners as they are excluded by the Condominium Act, 1998 (the “Act”). Samuel disagreed and sought resolution in the CAT.

The CAT dealt with this issue in a two-pronged analysis:

1. Do email addresses form part of the Record?
2. If yes, are owners entitled to obtain them?

First, the Act requires that condominiums maintain the Record of Owners and Mortgagees. This includes the name of the unit owner, their address for service, and a statement of whether the owner has agreed to a method of electronic communication. Samuel argued that the statement should include the electronic address associated with that communication. The Condominium and the CAT disagreed.

The Act stated that where an owner has entered into an agreement with a condominium to receive communications electronically, the Record is to include, “The name of the owner and a statement of that method; [emphasis added].” The CAT — in applying the principles of statutory interpretation that “the words of an Act should be read in ‘their grammatical and ordinary sense’,” — concluded that the method is whether the owner agrees to receive communications via email, fax or otherwise, not the specific electronic address.

Second, although the CAT determined that individual unit owners’ email addresses do not form part of the Record, even if they did, they are not producible and should be redacted. Although the Act permits owners to request and examine the records of a condominium, exceptions apply to records that contain information pertaining to specific units and owners, email addresses included.

Bottom Line

The Condominium Act, 1998, is consumer protection legislation that provides rights for owners to request, receive, and examine information in the possession of their corporation. It is also designed to balance this right with privacy interests. As such, email addresses of owners are not producible.

The Act may be interpreted in its grammatical and ordinary sense. The CAT aptly quoted Canada’s Supreme Court in their decision in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLii 837 (SCC) that, “[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament.”

If you need assistance understanding the developing world of condominium law, contact our team of professionals at SV Law.