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A guide to condo records and how to review them: Reasonable Doubt

The most frequent questions I get about condos are related to records. Under the Condominium Act, 1998 (the Act), certain items are considered to be “records” within the meaning of the Act, such as financial records, agreements that the condominium corporation is responsible for and information about particular units and owners. The corporation is required to keep proper records and to permit a unit owner to examine the records and obtain copies of them if the owner makes a proper request.

The last part of the foregoing frequently gives rise to questions, both by unit owners and by condominium managers and boards of directors. Most often, these questions relate to the process that a unit owner must follow to review the records and obtain copies of same, and whether a particular record is required to be produced to an owner.

As I recently discussed, the Act is currently undergoing significant changes. One of the changes that came into effect on November 1 deals with records and the process for an owner to submit a request to review the records. While it has long been recognized by the courts that a condominium corporation’s records are intended to be an “open book” to the owners (subject to limited exceptions), historically there was little guidance from the legislation with respect to how an owner should go about requesting to review the records. Effective November 1, this is no longer the case, as the Act and its regulations now provide for records requests to be submitted in a prescribed form that is available on the Government of Ontario website.

Once a condominium corporation has received a request to inspect records, it is required to respond within a prescribed period of time (which period varies depending on the record(s) being requested). The response, broadly speaking, is required to either confirm that the owner will be permitted to inspect the record requested (and to confirm the estimated fee for the examination, as well as the cost of photocopying if the owner has requested a copy of the record), or to state that the corporation is refusing to permit the owner to inspect the record and the reason for the refusal. In this latter regard, there are certain records that an owner is not permitted to inspect, including records relating to a specific unit or owner (other than the unit of the owner making the request), records relating to a specific employee of the corporation (other than the employee’s employment agreement), or records relating to actual or contemplated litigation. A corporation may also be justified in refusing to permit an owner to inspect records if fulfilling the request would be unduly onerous for the corporation, or if the request is not being made for a proper purpose.

If a unit owner feels that a condominium corporation has improperly refused the owner’s request to inspect records, the owner may make an application to the Condominium Authority Tribunal (the CAT) for an order that the corporation permit the owner to inspect the records requested. (Previously, an owner would have been required to bring a claim in the Small Claims Court for this relief, but these claims are now within the jurisdiction of the CAT as of November 1.) In considering such an application, the CAT may make an order requiring the condominium corporation to permit the owner to inspect the records requested, or may deny the owner’s request. Additionally, if the CAT is satisfied that the corporation has unreasonably or improperly refused to permit the owner to inspect the corporation’s records, the CAT may order the corporation to pay a penalty of up to $5,000 to the owner.

Many disputes between unit owners and condominium corporations regarding records could be avoided if the owner and the corporation’s manager or board of directors understood their respective rights and obligations. Corporations should keep in mind the “open book” principle with respect to records, and should not go out of their way to look for reasons to deny proper requests to inspect records. In turn, owners should understand what records they do and do not have the right to review, and should exercise their rights to examine the records reasonably.

Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.

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