Virtual practices stir up privacy concerns

Panel discusses sharing personal information with third-party service providers
Wednesday, March 31, 2021

As the Ontario government considers making digital and virtual processes permanent under the Condo Act beyond December 31st, 2021, industry is addressing various privacy concerns managers and board members have been inquiring about.

Can condo corporations provide owner information to third party providers? What privacy legislation applies to condos? Can owners opt out of email service? These were just three questions answered at a recent Condo Advisor webinar in February.

Electronic notifications

While owners previously needed to consent to electronic notifications for preliminary notices or notices of a meeting, that no longer applies right now. At least until the end of May, an owner is also not allowed to opt out of email notifications.

Some owners might say they never consented to receiving an email, requesting a paper copy instead. Some may desire to “opt out of email service.” The question of “can they” remains uncertain, but it’s something the province needs to examine, said condo lawyer Rod Escayola of Gowling WLG, pointing to a section under the Condo Act that deals with address of service.

“Now the default address of service would likely be the unit, but an owner under section 47 (4) of the Act could say, “’no, actually, I’m not going to accept service at the unit,’” he said. “Imagine a situation where you’re leasing your unit out and an owner could also advise a corporation that they’re not going to accept it by mail at the municipal address or at the door.”

A corporation can serve at the municipal address of record (where Canada Post mail is accepted), but an owner could opt out of that. “So, I can envision a situation where an owner would also be able to opt out of email service,” he said. “That’s something I think that the province needs to turn its mind to.”

Meanwhile, there are certain paper documents that should be sent via mail; legal proceedings for instance, as it’s important to know they arrived at the correct destination and not a spam folder. “If you’re dealing with a question of arrears, I certainly would send it by email, but I would also send a copy at the municipal address or at the address of service you have on record,” said Escayola

Anti-spam legislation

Canadian Anti-Spam Legislation (CASL) does not apply in condos where various documents emailed between the corporation and owners or management and owners is considered legitimate. Rather, it’s more geared to commercial electronic messages that ‘encourage participation in a commercial activity’, said condo lawyer David Plotkin. This relates to “purchasing, selling, bartering a product, or providing a business.”

PIPEDA and personal information best practices

The Personal Information Protection and Electronic Documents Act (PIPEDA) is a law protecting the personal information of Canadian consumers. According to the federal privacy commissioner, organizations covered by PIPEDA must obtain an individual’s consent when they collect, use or disclose that individual’s personal information. Any personal, identifiable information (address, email, phone number, location, etc.) can only be used for the purposes for which it was collected.

There’s no “judicial answer” or court ruling confirming whether PIPEDA applies in condominiums as it does to commercial activities, said condo lawyer Graeme Macpherson, suggesting every corporation still conduct themselves as if PIPEDA applies to them. “That would mean that it’s worth looking into appointing a privacy officer for your condominium to ensure that you’re complying with PIPEDA,” he said. “In order to do that, the best practice is to probably implement a privacy policy.”

He also laid out some best practices, namely treating any personal information collected with the utmost care. “You only disclose what absolutely has to be disclosed. You keep the private information and personal information as close to your chest as you can, and you ensure that any collection or disclosure of private information that you are engaged in, you have to make sure that’s in accordance with the Condominium Act.”

Information for third-party service providers

Since personal information must often be shared with third-party service providers—for example, owners’ names and email addresses for electronic voting processes—this disclosure brings concerns over any potential breach of rights and privacy. “While we know that PIPEDA likely doesn’t apply to condos that doesn’t mean you can just go around and disclose all sorts of information,” said Escayola. “You’ve got to provide the information that’s required for the purpose of the task that you’re delegating. You’re basically delegating a task to a service provider in order to gain some efficiencies and by doing that you transfer this information for the purpose of processing it only.”

When transferring information, corporations must do whatever they can to ensure the information is being sent to trustworthy people who have safeguards in place to preserve it.

“You want to make sure that they’re not going to disclose this information to a third party or to somebody else,” he said. “And they’re not going to use that to suddenly spam you with an invitation to various cruises or to buy books or to whatever it is, right? So, as long as you’re transferring only the information that’s required for the purpose that it is required, and you’re doing so in the context where there’s a clear agreement with a service provider as to how they will treat that information, then you’re good.”

What information do third-party service providers need? According to Adam Acuri of CondoVoter, it’s fairly basic. A template for an owner’s list, ensures that his company is only receiving the required information. “If that unit is in arrears we don’t need any other information other than just notifying that they are in arrears or not in arrears.”

Voting privacy

Should corporations be able to obtain a preview of voting results? Condo lawyer Denise Lash of Lash Condo Law says there’s a difference between knowing if there will be enough votes to pass a bylaw versus knowing the preliminary results of board directors/candidates.

“I think some of the reason that this has been a bit complicated is because of advance voting versus electronic proxies,” she noted. “When you’re dealing with advanced voting, those are votes that are pretty much like putting a ballot in a ballot box, although you can change your electronic vote all the way from when you start two weeks ahead of the meeting until the meeting itself.

With electronic proxies, and proxies, you can actually see the votes. So you can see who has voted for whom. Part of the problem here is that if you’re using an electronic proxy system you get to see how the directors are doing, and details as to how a bylaw vote is going, and I’m not sure that’s how it should be.”

Josée Deslongchamps, president and principal condominium manager at DES Services, said that within her corporations, proxies have always been addressed directly to the board and opened at registration. “You don’t know in advance whether or not you’re going to achieve what you’re trying to do at that meeting and I think that’s proper,” she said. “That’s protecting the integrity of the voting process. I want to know whether or not I have sufficient votes come in to hold the meeting. Do I have quorum?”

In the virtual world condos are embracing, however, boards might not know beforehand if there are enough votes to meet quorum. “In real life, and the in-person meetings, you’d look in the room and if you don’t have 50 per cent of the ownership present then you know you won’t be able to proceed to a vote,” said Escayola. “Then you can invite a motion from the floor and then you can adjourn the meeting and then you can postpone that vote at a later date.”

With virtual meetings, the practice of adjourning is stirring up scrutiny. “Should you know that owners have voted in favour of a bylaw before you decide to adjourn?” posed Lash, adding that some third-party service providers are being asked if a bylaw has been voted in favour so they can adjourn the meeting and get more votes in favour.

Yet another popular topic: awareness of voting results during a meeting. ‘I want to know the numbers,’ is a question condo lawyers are often asked. “There’s nothing that prescribes that you must divulge the exact numbers of who was voted in,” said Plotkin. “Our practice has been not to divulge those numbers. It’s very easy to say who has been elected and there are certain records of the corporation that are held on the back end.”

A record can alway be requested after the meeting. “You have a scrutineer’s report that scrutineers of the meeting would register with the condominium corporation,” added Katherine Gow, vice-president on the board of directors of the Association of Condominium Managers of Ontario. “Sometimes the reason why folks do want to have that information announced at the meeting is they feel it may stop somebody from making a records request after.

But I tend to believe that that’s something that is the natural course of business, and I want to make sure that as many people as possible who may be interested [in serving] as directors run in elections. I don’t want. . . anybody to be discouraged because they didn’t get a grand number of votes.”

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