The Scope of the CAT’s Records Jurisdiction: Draft AGM Minutes & Audio Recordings

August 2022

King v. Y.R.C.C. No. 692, 2022 ONCAT 80 (CanLii)

Introduction

While the Condominium Authority Tribunal (“CAT”) has certain records-related jurisdiction, such only applies if the information is a record for the purposes of the Condominium Act, 1998. Recently, the CAT correctly reaffirmed that unit owners do not have the right to obtain ‘draft meeting minutes.’ Interestingly, while the CAT determined that the unit owner also did not have the right to obtain audio recordings of the annual general meetings (“AGMs”) in the case at hand, the CAT proceeded to note that unit owners may have the right to obtain such audio recordings in certain circumstances. However, this conclusion is unclear. Namely, condominiums can certainly argue that: (i) audio recordings are not a record for the purposes of the Condominium Act, 1998; and (ii) thus, unit owners are never entitled to obtain same. 

The Issues in King

The Unit Owner commenced a CAT Application seeking: (i) the ‘original draft minutes’ of three (3) AGMs; and (ii) the audio recordings of two (2) AGMs. York Region Condominium Corporation No. 692 (the “Condominium”) refused to produce same. 

The Scope of the CAT’s Records Jurisdiction

As a ‘creature of statute,’ the CAT can only make decisions based on the express authorities provided in the Condominium Act, 1998, and the relevant regulation. The CAT’s original adjudicative jurisdiction relates to the retention and production of records. However, the CAT only obtains such jurisdiction if the information in question is a record for the purposes of the Condominium Act, 1998. Certain forms of information are not records, and thus, unit owners are not entitled to same.

Section 55(1) of the Condominium Act, 1998; and (ii) section 13.1 of O. Reg. 48/01 enumerate the forms of information that are records. To constitute a record, information must fall within the ambit of one of the listed items. With respect to discussions at AGMs, section 55(1)(1.) provides: The corporation shall keep…A minute book containing the minutes of owners’ meetings and the minutes of board meetings.

The Decision in King

In King, the CAT reaffirmed that draft meeting minutes are not a record because they: (i) are a work product; and (ii) are not approved by the owners. 

The CAT proceeded to determine that the Unit Owner was not entitled to the audio recordings in this case. Interestingly, the CAT made this determination not based on an analysis of the listed records in the Condominium Act, 1998 or O. Reg. 48/01. Rather, the Unit Owner was not entitled to the audio recordings because he was seeking same due to his “personal interest in seeing his own preferred wording reflected in the AGM minutes,” which “is not a request made by an owner having regard to the purposes of the Act.” Interestingly, the CAT proceeded to state that audio recordings may constitute a record in certain circumstances because they are “kept on behalf of [the Condominium], which could, potentially, cause it to become a record of the corporation to which an owner is entitled. 

While there are no issues with the purposive analysis, the statement that audio recordings of AGMs may constitute a record in certain circumcenters is interesting. Namely, which of the listed records relate to such audio recordings? Unfortunately, the CAT did not cite to a specific provision in the Condominium Act, 1998 or O. Reg. 48/01. Further, the CAT’s reasoning—i.e., the fact that audio recordings are “kept on behalf of a condominium”—is somewhat odd, as this is not the legal mechanism whereby information becomes a record. Given this issue, and because audio recordings may not fit within any of the listed records, future condominiums can certainly argue that audio recordings are not records, and thus, unit owners are never entitled to same. 

Bottom Line

In records disputes before the CAT, the first question is always whether the information is a record. While draft minutes are not records, questions linger with respect to audio recordings. Future litigation will almost certainly arise given the CAT’s commentary in King. 

Always consult legal counsel when faced with records requests.

Written by Jamie Cockburn, edited by Christopher Mendes & Robert Mullin. *This article does not constitute legal advice, always consult legal counsel.