Summer Case Law Update – Records Edition

There have been many reported cases from the Condominium Authority Tribunal (CAT) this year on issues such as records, pets, parking, and nuisances. Today, we discuss a few of the records cases from the past few months. Two of the cases affirm decisions made by the CAT in older cases that are worth repeating since we still see disputes about these issues regularly. The third case provides examples of poor record keeping by a condominium to illustrate what not to do.

Not all documents are records of the condominium

Soper v. Muskoka Common Element Condominium Corporation No. 71, 2024 ONCAT 114

The unit owner requested a copy of the manager’s presentation report from the AGM. The condominium refused on the basis that there was no draft or final report as the presentation was based on the manager’s personal notes, which did not form part of the records of the condominium. The CAT member agreed with the condominium that the manager’s personal notes for the presentation were not a record of the condominium. As such, the owner was not entitled to the manager’s notes. The owner sought to recover the filing fees for the application. The condominium sought to recover its legal costs of over $4,000. The CAT member dismissed the application without costs as there were no factors to support an award of costs to either party and both parties acted appropriately throughout the proceeding.

Redactions must be explained

Lou v. Toronto Standard Condominium Corporation No. 2036, 2024 ONCAT 100

The unit owner requested invoices relating to plumbing work that took place between October 2022 and October 2023. The condominium provided redacted plumbing invoices, but no statement explaining the redactions. The owner sought an explanation for the redactions, including the invoice related to work in his own unit. The CAT member found that the owner was entitled to an explanation for the redactions made to invoices provided to him and he was entitled to an unredacted invoice for work done in his unit. The CAT awarded the $200 filing fees to the owner.

History of poor record keeping shows failure to satisfy duties of directors

Verjee v. York Condominium Corporation No. 43, 2024 ONCAT 93

The application was part of an ongoing conflict about records between the parties as the owner had filed nine records cases in the past two years. The CAT member found that the owner has “exacting standards” for records adequacy, but the condominium’s record keeping practices were a contributing factor and needed improvement. The condominium had produced the records by the hearing, so the only issues remaining were the reasonableness of the fees charged to produce the records and if the records were adequate.

The CAT member was critical of the condominium’s practices for many reasons, including the following:

1. using counsel to respond to record requests when it was unnecessary (e.g. the records did not require complex legal analysis);
2. providing inconsistent fee estimates (e.g. no explanation was provided as to why the hourly rates were different for certain records requested)
3. not providing records after receiving payment from the owner;
4. producing records with errors and having a history of doing so, which the CAT member stated suggested a careless disregard for details and duties relating to record requests; and
5. not describing decisions made in the minutes and claiming solicitor-client privilege justified the decisions not being included (the CAT member found that all decisions should be included in the minutes, but some may be redacted if a request is received and the owner is not entitled to receive it for one of the reasons set out in the Act).

An interesting part of the decision related to records of a shared facilities committee. The condominium claimed it was not responsible for maintaining the records of the shared facilities committee and told the owner to contact the shared facilities manager. The CAT member disagreed with this approach. The CAT member indicated it was the role of the directors of the condominium to ensure that the shared facilities records were maintained as the shared facilities committee was not a separate legal entity, but rather a committee comprised of members of the three condominiums so each of the condominiums had a duty to ensure adequate records were maintained.

Our next post will have some case law from the CAT on other issues – pets, parking, and nuisance.