Decisions from the CAT: Reconsidering “In-Camera” Minutes

Introduction:

It is not uncommon for condominiums to conduct “in-camera” board meetings. Such meetings are used to discuss confidential matters, and the minutes are often entirely withheld from unit owners. Several recent decisions from the Condominium Authority Tribunal (the “CAT”) now question this practice and recommend that all meetings should proceed in the same manner, with the minutes being scrupulously redacted to withhold only that information which can legally be withheld.

Avoid In-Camera Meetings:

The Condominium Act, 1998 (the “Act”) requires condominiums to: (i) keep board meeting minutes; and (ii) allow unit owners to obtain them upon request. There are exemptions from the record production rule found in section 55(4) of the Act. The common law of solicitor-client privilege also protects certain communications with counsel, even if such are set out in condominium records.

As a result of the foregoing exemptions, many condominiums create two types of meeting minutes: (i) standard; and (ii) in-camera. Due to the nature of the matters discussed in ‘in-camera’ meetings, the minutes from same are often entirely withheld from unit owners: i.e., condominiums often refuse to provide ‘in-camera’ minutes, or redact the entirety of ‘in-camera’ minutes without conducting a detailed review of same.

The CAT recently released three decisions lambasting the ‘standard’ vs ‘in-camera’ dichotomy:

1. Robinson v. Durham Condominium Corporation No. 139, 2021 ONCAT 81; 
2. Russell v. York Condominium Corporation No. 50, 2021 ONCAT 103; and
3. Zamfir v. York Condominium Corporation No. 238, 2021 ONCAT 118

These decisions held that the Act makes no reference to ‘in-camera’ meetings. The CAT, in Zamfir, states, “any reference to “in-camera” minutes should be interpreted as a reference to a record of those parts of a board meeting that may take place on a confidential basis and/or that may require redaction.” Further, citing Robinson, the CAT in Russell states that ‘in-camera’ meetings are “at odds with the “open book” philosophy…”; and “den[y] owners the ability to examine or obtain copies of these minutes, in the absence of any statutory exemption for them...” Such may constitute a breach of unit owners’ rights to obtain/examine records, and may constitute a withholding of records without reasonable excuse.

Rather than differentiating between ‘standard’ and ‘in-camera’ meetings, all board meetings should proceed and be minuted in the same manner. The portions of the minutes relating to confidential information should then be carefully reviewed. Redactions should only be applied where references relate to information that can be lawfully redacted. Further, block redactions should be avoided, and explanations should be provided. As stated in Russell: “These minutes contained block redactions of the substance of the meetings. Section 13.8 (1)(b) of the Regulation requires that, when a record is redacted, a statement explaining the reason for each redaction is to be provided, together with a reference to the statutory reason relied on for the redaction.” While such review can add to condominium expenses, withholding ‘in-camera’ minutes can lead to hefty costs and penalty awards.

Bottom Line:

Condominiums should avoid differentiating between ‘standard’ and ‘in-camera’ meetings. All meetings should be conducted and minuted in the same fashion. The minutes should then be carefully redacted to only exclude information, which can lawfully be withheld. As a quick refresher, condominiums may redact information concerning: (i) employees; (ii) actual or contemplated litigation; (iii) specific units or owners (other than that relating to the requesting owner); and (iv) solicitor-client privilege. Counsel should be consulted where specific questions arise in relation to permissible redactions.

If you have questions regarding the operations of your condominium board, please contact a member of the SV Law Condominium Practice Group.

Written by Jamie Cockburn, edited by Christopher Mendes, and Robert Mullin.

*This article does not constitute legal advice; always consult legal counsel.