Emailed Records Request? Either Do or Don’t, CAT Says
One of the persisting questions that has arisen ever since the new Request for Records regime was established on November 1st 2017 – and the Condominium Authority Tribunal (the “CAT”) along with it – is whether a unit owner’s Request for Records can be validly delivered to a condominium corporation via email.
In my most recent 2 CAT cases, I successfully defended my condominium clients from the CAT Applications pursued by unit owners. In both cases, the CAT found that no penalties and no costs whatsoever were warranted against my condominium clients; Florentine Financial Corporation v. Peel Condominium Corporation No. 346, 2021 ONCAT 77 (“Florentine”), and Cameron v. Toronto Standard Condominium Corporation No. 2078, 2021 ONCAT 83 (“Cameron”).
However, even though the CAT found the unit owner’s Request for a certain record appeared to be “somewhat disingenuous” in Florentine and found that the condominium corporation in Cameron had “acted in good faith” during the extraordinary COVID-19 pandemic, the CAT nevertheless ruled that the email delivery of the Requests for Records in both cases was acceptable.
The Existing Law: Board Resolution Required for Email Delivery
Under Section 13.3(4)(d) of O. Reg. 48/01 (the “General Regulation”) made under the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), a unit owner’s Request for Records can only be validly delivered to the condominium corporation via email “if the board has, by resolution, decided that [email] is a method for receiving delivery of the request”. Without such a Board Resolution in place, the unit owner is unable to validly email their Request for Records and must deliver their Request to the condominium in some other manner.
Of course, with the COVID-19 pandemic shutting down most in-person interactions at on-site Management Offices and many parties resorting to electronic communications and virtual meetings, the number of unit owners who have used email to send their Request for Records to their Condominium Manager has likely increased over the past several months.
However, the Board Resolution requirement for valid email delivery of a Request still remains in place under the General Regulation, as of the date of this writing.
As such, in my cover letters enclosing the Board’s Response forms to the unit owners in Florentine and in Cameron, I explicitly advised that the condominium corporation was reserving its rights to argue that the unit owner’s Requests for Records were not validly delivered to the condominium via email, pursuant to Section 13.3(4)(d) of the General Regulation. This was especially important in Cameron, since the public policy rationale as to why a Board Resolution is required for valid email delivery of Requests for Records was laid bare in that specific case.
In Cameron, the unit owner had emailed several extensive Requests for Records to the Condominium Manager over multiple different days, and the Condominium Manager – who was busy dealing with the sudden and unprecedented COVID-19 pandemic at the condominium, where almost all of the residents were elderly individuals with vulnerabilities – simply did not see some of the Requests for Records that were sent via email. Compounding that administrative oversight was the fact that in this case, as is often the case with electronic PDF versions of the Request for Records, the unit owner’s Request for Records email attachment could not be opened without the latest version of Adobe on your device at the time.
The CAT Decision in Florentine
Although the CAT Stage 3 Hearing in Florentine ended more than a week after the CAT Stage 3 Hearing in Cameron ended, the CAT released its Decision in Florentine more than a month before releasing its Decision in Cameron.
In Florentine, the CAT found that it was not until my office’s cover letter enclosing updated Board’s Response forms to the unit owner’s 2 Requests for Records, that the condominium explicitly advised the owner that their Requests were invalidly delivered via email since no Board Resolution authorizing same existed. Instead, the CAT relied on the condominium’s initial Board’s Response forms that it had sent to the unit owner, which did not point out the invalid method of email delivery. Despite my office’s subsequent cover letter explicitly replacing the condominium’s previously-provided Board’s Response forms, the CAT found that it was, essentially, too late to save the day on that issue.
However, the CAT did state that if the condominium corporation does not have a Board Resolution authorizing email delivery of Requests for Records, then it may simply ignore all future Requests for Records that are sent by unit owners via email.
Ultimately, the CAT ruled that no penalty or costs were warranted against the condominium corporation in Florentine – not even the typical $200 total filing fee that the CAT often awards unit owners after a Stage 3 Hearing.
The CAT Decision in Cameron
In Cameron, the CAT explicitly relied upon its “previously” established precedent in Florentine, whereby the CAT found that the Request for Records was valid despite being delivered via email without a Board Resolution authorizing same. Again, it is worth repeating that the Hearing in Florentine ended after the Hearing in Cameron, yet the CAT released its Decision in Florentine before its Decision in Cameron.
The CAT’s factual basis for finding that the emailed Requests for Records were validly delivered in Cameron differed slightly from its factual basis in Florentine. In Cameron, the condominium’s Management at the time had deliberately set up 2 email addresses to accept email delivery of Requests for Records, across all of the condominium sites that it managed; even though the specific condominium corporation in Cameron did not have a Board Resolution explicitly authorizing the acceptance of emailed Requests. The CAT found that because the Manager had set up 2 specific email addresses to accept emailed Requests, it was therefore a “reasonable expectation” of a unit owner to expect that he could email his Request for Records to those email addresses.
Since that condominium management services provider was no longer the Manager for the condominium (and consequently, those 2 email addresses were no longer accessible to the Board), the CAT urged the condominium to set up a “consistent procedure” for unit owners to request records from it – whether via email or not.
Like in Florentine, despite finding that the Requests for Records were sufficiently delivered via email, the CAT ultimately ruled that no penalty or costs were warranted against the condominium corporation.
It is also worth noting that in Cameron, the CAT explicitly re-affirmed the legal principle expounded in my previous CAT case of Ravells v. Metropolitan Toronto Condominium Corporation No. 564, 2020 ONCAT 44 (“Ravells”); namely, that a unit owner is not entitled to further information or clarification about a condominium’s records, even though they might not understand or agree with the content of those records. As was also echoed in my previous CAT case of Rahman v. Peel Standard Condominium Corporation No. 779, 2021 ONCAT 32 (“Rahman 2”), a condominium is only required to maintain adequate records and to disclose them when required under Section 55 of the Act – the Act does not require that each unit owner must find the information contained in the disclosed records to be sufficient or understandable for their own individual purposes.
Takeaways for Condos: Either Do or Don’t Accept Emailed Requests
In Florentine, the CAT held that the condominium may ignore any Requests for Records that are sent via email in the future – however, that should be made clear to all of the condominium’s unit owners, so that owners are aware that email delivery will not be accepted.
In Cameron, the CAT suggested that if the Board or Management is accepting Requests for Records via email, then a Board Resolution should be adopted authorizing same – and again, that should be made clear to all unit owners.
In both cases, the CAT has urged condominium corporations to adopt a consistent policy towards accepting Requests for Records from unit owners (whether via email or not), and to widely communicate that policy to all unit owners – so that everyone is on the same page moving forward, as to how a unit owner can properly request a record from the condominium.
Of course, some condominium Boards may balk at publicizing such a Records Request policy with its unit owners, and adding to the already-overburdened workload of its Manager and Board members. But the alternative of simply staying silent on the issue of Records Requests is akin to an ostrich sticking its head in the sand and hoping that unit owners do not submit any Requests for Records at all. Given the widely-available Condominium Authority of Ontario (the “CAO”) website, the CAO public hotline, and various Google results assisting unit owners with pursuing their Request for Records, unit owners’ Records Requests are not an issue that is likely to go away anytime soon.