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February 14, 2022 - By Victor Yee

Maybe Don't Post Those Board Meeting Minutes After All

In the interests of transparency and communication with unit owners, some condominium Boards have been in the regular habit of uploading their monthly Board Meeting Minutes to their condominium corporation’s online community portal.

But maybe that’s not such a great idea after all, given some of the recent cases from the Condominium Authority Tribunal (the “CAT”).

 

No More In-Camera Minutes

For many years now, condominium corporations often segregated their Board Meeting Minutes between what are typically called “General Minutes” and “In-Camera Minutes”, with the latter usually being private discussions about particular unit matters or ongoing litigation.  Typically, only the “General Minutes” are posted onto the condominium corporation’s online community portal for unit owners to view, not the “In-Camera Minutes” which were typically the last page (or pages) in that month’s Minutes.  This distinction between general and in-camera Minutes was supposed to make it easier for busy Managers and Boards to strike an appropriate balance between openness & transparency in governance, and the need to keep certain information private & confidential.

However, in Robinson v. Durham Condominium Corporation No. 139, 2021 ONCAT 81 (“Robinson”), the CAT held that the Condominium Act, 1998 (the “Act”) does not recognize such a distinction between General Minutes and In-Camera Minutes.

In Russell v. York Condominium Corporation No. 50, 2021 ONCAT 103 (“Russell”), the CAT went even further and held that it is “not a best practice” to keep Board Meeting Minutes divided between General Minutes and In-Camera Minutes.  Instead, in the CAT’s view, all of the Board Meeting Minutes for that month should be kept together in the same document, and only redacted as necessary (e.g. when a unit owner submits a formal Request for Records seeking those Board Meeting Minutes).

Gone are the days that a condominium corporation could simply parcel-out the In-Camera Minutes as a separate page at the end, and then upload the General Minutes without the In-Camera pages to the community portal.  Now, the private & confidential Board discussions are supposed to be mixed-in with the General Minutes instead.

 

Review the Minutes with a Fine-Tooth Comb, Or Don’t Post Them at All

Consequently, unless the Board, the Condominium Manager, or the condominium’s legal counsel are meticulously reviewing every single word in the now-combined Board Meeting Minutes for redactions every month before they are posted to the community portal, it may be safer for the condominium to simply not proactively post the Board Meeting Minutes at all.

What can be redacted from a condominium’s records are also a difficult and ever-evolving judgment call based on the existing law at the time.  For example, if the condominium corporation is seeking legal advice from its counsel regarding an issue affecting multiple units (e.g. the units along the same plumbing stack), even though that may not necessarily engage the privacy interests of any one individual unit owner, that discussion should still be redacted from the Minutes pursuant to Section 55(4)(d) of the Act.

Section 55(4)(d) of the Act is not often fully understood by Boards, Managers, or even lawyers.  Section 55(4)(d) of the Act is the legislative provision that allows the Ministry of Government and Consumer Services (the “MGCS”) to, via the promulgation of a Regulation, decide what other exemptions can be relied upon by a condominium corporation to redact or withhold records from the view of unit owners.  As per Section 13.11(2) of O. Reg. 48/01 (the “General Regulation”) made under the Act, the Board’s decision to obtain a report or opinion from a lawyer about that plumbing stack issue can be redacted from the condominium’s records – at least, in this author’s view and at the time of this article’s writing.

Another difficulty with proactively posting Board Meeting Minutes to the community portal every month is that the condominium corporation might not be aware that a unit owner is planning “contemplated litigation” against the condominium at the time that the Minutes are posted; and therefore, that portion of the Minutes has not been redacted under Section 55(4)(b) of the Act before uploading.  Once those unredacted Minutes are posted onto the portal and downloaded by that unit owner, even if the condominium receives the unit owner’s lawsuit a week later, it is too late to put the toothpaste back into the tube – the unit owner already has a copy of the unredacted Minutes.

In Zamfir v. York Condominium Corporation No. 238, 2021 ONCAT 118 (“Zamfir”), the unit owner submitted a Request for Records on November 19th 2020, seeking the in-camera Board Meeting Minutes that related to his own unit for as far back as almost 3 years prior (to January 1st 2018).  If the condominium corporation had posted their intermingled, unredacted Board Meeting Minutes onto their community portal on a monthly basis from January 1st 2018 onwards, then the unit owner would have already been able to download a copy of the Minutes and seen exactly what the Board was considering in relation to the contemplated litigation against him.  Even the CAT was not willing to go that far, and ruled that at least some things should still remain confidential and redacted from the unit owner’s view.

 

Requiring the Intermingling of Minutes Has Damaged Transparency in Governance

By essentially requiring condominium Boards to intermingle their General Minutes with their In-Camera Minutes, the CAT has (perhaps inadvertently) dealt a significant blow to community transparency & openness in governance, given the realities of non-profit condominiums on the ground. 

If “best practice” dictates that the private & confidential Board discussions can no longer be easily separated from the regular Board Meeting Minutes, then “best practice” would also dictate that every condominium corporation should be having their condominium counsel review their intermingled Board Meeting Minutes every month before posting them onto the community portal – or not posting the Minutes at all.

Condominium corporations are, therefore, stuck between a rock and a hard place – between trying to be open & transparent with its unit owners, and protecting the private & confidential matters of particular owners, ongoing litigation, and other sensitive issues.  It is going to be extremely rare for a non-profit condominium corporation to want to pay for their outside legal counsel to carefully review their Board Meeting Minutes every month.  Instead, many condominium Boards will simply opt to shut it all down, and not post any more Minutes onto their community portal.


All of the information contained in this article is of a general nature for informational purposes only and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this article is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.