Access to Records under the revised Condominium Act
One of the biggest issues facing owners is their right to information related to their condominium corporation. The Condominium Act balances the rights of Boards to make business decisions related to the operation of the condominium corporation with the rights of owners to access that information. This is intended to ensure that Boards are aware of the fact that their decisions can face public scrutiny.
It has been well documented that the single most common cause for disputes between owners and Boards is the topic of access to records. There are a variety of reasons for this. It could be that directors are cautious about releasing information public for fear that it will be twisted and used against them. It can also be that owners are asking for information which they are either not entitled based on restrictions in the condo act, or are asking for such a volume of information that the Boards are hesitant to comply with that request.
Core and non-core records
One of the largest areas of disputes are the costs associated with owners seeing records which the Condominium act gives them the right to access. Many owners feel that a right to a record means that they are entitled to that record with no costs. The Condominium Act, 1998 does allow corporations to charge copying costs, and many corporations have passed by-laws that allow them to charge “reasonable” administrative costs. It has become obvious to anyone working in the condominium industry that that an owner’s version of reasonable costs and a Boards has been the catalyst for many disputes.
Additionally, many owners feel that the imposition of costs have been used as a deterrent by Boards, especially when owners are asking for current or recent document which they feel are readily available.
The reverse side of the issue is the experience that Boards have had when owners ask for an exceptional amount of information, including historical documents from past years. The motivations of these owners have been suspect by Boards who have felt that if they fail to produce one document they will be accused of hiding information or trampling on the owner’s rights. It should also be noted that the time taken to meet the demands of the owners on these “fishing expeditions” comes from the time that management should be dedicating to working on behalf of all owners.
Access to records – requests and costs
It is important to note that while many things regarding records requests have changed the overall fundamental principal – that the Condominium Act, 1998 is consumer protection legislation and owners have a right to information on their condominium – has not.
The fundamental principal that a request for information by an owner must be for purposes under the condominium act remains intact. However, while owners are not required to disclose the purpose for their request they will be required to “declare” that their request is for purposes related to their ownership under the Act. Whether this declaration may be required to come in the form of a statutory declaration remains to be seen. See in particular proposed s. 13.3 of O. Reg. 48/01 for more detail.