As of Nov. 1, 2017, there is a new process under the Condominium Act, as amended, for making and responding to records requests in condo corporations. Requests for records must now be made in writing using mandatory forms, and people requesting records are no longer required to give the condo corporation a reason for their request.
Section 55 of the Condominium Act, as amended, continues to grant owners, purchasers or mortgagees the right to examine or obtain records. Ontario Regulation 48/01 sets out the new procedure for requesting records. The regulation also defines which records a corporation must keep (in addition to those listed in section 55 of the Condominium Act and the corporation’s bylaws), how the records must be kept, and for how long.
The new process for requesting records can be divided into three steps.
Step 1: The records request
The person requesting records must complete the mandatory form entitled Request for Records. This form and others referred to in this article can be found on the Condominium Authority of Ontario’s website. Adobe Reader 8 or higher is needed to open the forms, which can be filled out online or printed and filled in by hand.
The person requesting records must then serve the Request for Records by mail or courier to the address for service of the condo corporation, condo manager or management provider or other person who manages the property. The Request for Records can also be served by depositing it in the mailbox at the address for service or by sending it by email or fax if the board has passed a resolution to accept requests this way.
Step 2: The board’s response
After reviewing the request, the board must respond within 30 days using the mandatory form entitled Board’s Response to Request for Records. The board must deliver its response to the address for service or alternative method of communication indicated by the person requesting records in the Request for Records form.
In its response, the board must specify for each record requested whether the record is a core or non-core record. Whether a record is classified as core or non-core dictates how much the corporation can charge the person requesting records for costs and how long the board has to produce the records. If access to a requested record is refused, the board must specify in its response why and which part of section 55(3) of the Condominium Act the board is relying on to deny the request. For example, the board could refuse access to employee records or records relating to litigation or insurance investigations.
Core records include current versions of the declaration, bylaws, rules, shared facility agreements or mutual use agreements, and fiscal year budgets and amendments. Core records also include the most recent financial statements and auditor’s report, record of owners and mortgagees, information certificates sent or required to be sent to owners during the preceding 12 months, minutes of board meetings or owners’ meetings within the last 12 months, the most recent reserve fund study plan and any other records specified in the corporation’s bylaws as core records.
The board can’t charge a fee for core records if the person requesting records is asking for the record in an electronic format. If the requester is asking for a paper copy of a core record, the corporation can charge printing fees up to a maximum of 20 cents per page.
If the record is not a core record, it may be possible to charge a reasonable fee to recover the actual labour and delivery costs that the corporation incurs to make the record available, including photocopy charges that don’t exceed 20 cents per page. Labour costs may include reviewing documents that need to be redacted. If the corporation doesn’t actually incur labour costs, it can’t charge any fees for labour.
If the requester and the corporation come to an agreement on the delivery and costs associated with the request that is different than is prescribed in the Condominium Act or the regulation, both parties must complete the form entitled Waiver by Requester of Records.
Step 3: Delivery of records
The person requesting records must complete the bottom portion of the Board’s Response to Request for Records form under the heading Confirmation and return the completed form and payment to the condo corporation to receive records.
If the person requesting records asks for paper copies or an in-person examination of core records, the condo corporation must provide the records within seven days of receiving the requester’s confirmation and payment of the estimated fee. If the person requesting records agrees to receive core records in an electronic format, the corporation is required to deliver the records within 30 days of receiving the Request for Records form. Access to non-core records must be provided within 30 days of the corporation receiving the requester’s response along with payment of the estimated fee.
The corporation must clearly identify each document it’s making available for examination or delivering in an accompanying, separate written document (such as a letter) that notes whether any portion is redacted or removed. The statement must also explain in writing reasons for any redactions and which part of section 55 of the Condominium Act the corporation is relying on to justify the redaction. For example, minutes of meetings may be redacted to remove references to issues involving units or owners not involved in the records request.
In addition, the corporation must state in writing the actual costs to make available or deliver the record as well as the difference between the actual costs and the estimated costs set out in the Board’s Response. If the actual cost is less, the corporation must pay the person who requested records the difference. If the actual cost is more, the person who requested records has 30 days to pay the difference. However, the corporation is not permitted to charge more than the estimated cost plus 10 per cent, so it’s important for the board to pay attention when providing estimates.
Abandoned requests and records disputes
If a person who has requested records fails to respond and pay the required fee or apply to the Condominium Authority Tribunal (CAT) to resolve a dispute over the records request within 60 days of receiving the board’s response, the request for records is deemed abandoned. The request for records is also deemed abandoned if the person who requested records doesn’t apply to CAT for help resolving a records-related dispute within six months of delivering the Request for Records.
People who request records can no longer commence a small claims court action to compel the condo corporation to deliver the records when disputes arise over release of records or the associated costs. Now, a person who has requested records must follow the procedures set out in the new provisions of the Condominium Act. All records disputes will now be dealt with by the CAT, an online tribunal.
To initiate the first step in the CAT process, negotiation, the person requesting records must file an application and pay a $25 fee. During the negotiation stage, the parties are provided with information to help them to resolve the dispute on their own.
If the parties are unable to resolve the dispute regarding records, the matter proceeds to the next stage, mediation, at which point a $50 fee is payable by the applicant. The CAT then provides a mediator to help the parties resolve the dispute.
If the mediation stage fails to resolve the dispute, the matter proceeds to formal adjudication, in which an arbitrator is assigned to make a binding decision. A $125 fee is charged to the applicant for this stage.
Condo corporations should be aware that the penalty for withholding records has increased from $500 to $5,000 under the new provisions of the Condominium Act. Condo corporations should take requests for records seriously and shouldn’t deny requests unless they have a valid reason under the Condominium Act to do so.
Section 55(4) of the Condominium Act sets out the types of records that are exempt from disclosure requirements. Section 13.11 of Ontario Regulation 48/01 further expands and defines the list of records that don’t have to be disclosed. These records include but are not limited to records related to an owner’s email or fax number, unless the owner consents to having that information shared, and the portion of a ballot or proxy that specifies the unit, unless the corporation’s bylaw states otherwise.
While this new process is still in its infancy, the standardization introduced by mandatory forms, cost recovery and automatic abandoning provisions should make it easier for everyone to deal with records requests and will hopefully reduce many of the records disputes seen in the past.
Sonja Hodis is a litigation lawyer based in Barrie that practices condo law in Ontario. She advises condo boards and owners on their rights and responsibilities under the Condominium Act and other legislation that affects condos, such as the Human Rights Code. She represents her clients at all levels of court, various tribunals and in mediation/arbitration proceedings. Sonja has also gained recognition for creativity and tenacity in ground breaking human right case law in the condo industry. Sonja can be reached at (705) 737-4403 or [email protected] Her website can be found at www.hodislaw.com and her videos can be found at www.condoinmotion.com.
Note: This article is provided as an information service and is a summary of current legal issues. The article is not meant as legal opinions and readers are cautioned to not act on the information provided without seeking legal advice with respect to their specific unique circumstances.