chapter previous next
The board of directors has been given great powers by the Condominium
Act and as a check on these powers, the Act allows owners to examine
the corporation's records.
However, the owners' rights to examine the corporation's records, have
been steadily eroded over the years by different court decisions. Some
of those decisions are listed below.
McKay et al. v.
Waterloo North Condominium Corp. No. 23
 O.J. No. 2435
Action No. 2820/92
Ontario Court (General Division),
10 November 1992
This is an early decision on the right of owners to examine the condo
corporation’s records and this decision has been under attack by the
boards, and their lawyers, ever since.
The issues raised by this application are whether Section 21 confers a
right to inspect all of the records of the corporation, whether the
corporation has the authority to restrict this right to inspect, and
whether the right to inspect comprehends the right to make photocopies
of the records.
The underlying policy of the Condominium Act is that the affairs of the
corporation are to be an open book to the owners, and pursuant to
section 21 of the Act, an owner has a right to inspect all of the
records of the condominium corporation, subject only to an exception
for records for which a claim of privilege or confidentiality may
legitimately be made.
It is not within the powers of the board of the condominium corporation
to cut down by by-law or resolution the scope of the rights conferred
by Section 21.
Access to the records cannot be made subject to the condominium board's
approval, although the board may by by-law establish a procedure for
the orderly processing of requests for access to its records. The board
cannot deny the right of an owner to make photocopies at his or her own
Any owner or agent of an owner duly authorized in writing may inspect
the records on reasonable notice and at any reasonable time.
The corporation asked the court to provide guidance as to how it is to
comply with its obligations under Section 21. In particular, it asks
the court to determine the records to be produced and what is
As discussed above, all of the corporation's records are open to
inspection by owners under Section 21, subject only to records for
which a claim of privilege or confidentiality may legitimately be made.
By "reasonable access" the respondent must be referring to "reasonable
notice" and "at any reasonable time". What is "reasonable" depends, of
course, on the circumstances. A requirement of 48 hours' notice would
not be unreasonable, whether the notice given is oral or in writing.
Access during regular business hours, in this case the business hours
of the property manager, would comply with the "any reasonable time"
The following advice in Loeb, Audrey, Condominium Law and
Administration, 2nd ed. (Toronto: Carswell, 1989) at p. 11-10 provides
some useful and practical guidance:
Any unit owner, or an agent duly authorized in writing by a unit owner,
is entitled to inspect the records on reasonable notice and at any
reasonable time. Since the corporation is required to keep "adequate"
records and since the records can be quite voluminous, they should be
kept in a permanent location which has adequate space and can be locked
when not in use.
It would be preferable to keep the records on the premises of the
condominium in case the board needs to refer to them or a unit owner
wants to inspect them. However, the corporation is not required to do
Condominiums employing a property management company may find it more
convenient to store the records with it and arrange for the delivery of
certain records when requested.
The applicants have the right to inspect all of the records of the
corporation, including the right to make photocopies of any of those
records at the expense of the applicants, and orders that the
corporation allow the applicants to inspect all of the records at any
reasonable time and on reasonable notice and that the corporation to
allow the applicants to photocopy any such records at their expense.
Pretty straight forward, you would think.
condo documents—condo directors must pay
N. Fortunato vs S. Sardar (aka Hussain), A. Karim & S.
Small Claims Court
File #: SC-12-00015580-0000
Deputy Judge L. J. Richardson
08 July 2013
Representing himself, Nicoló Fortunato won a judgment against
three directors of York Condominium Corporation # 42 for denying him
his right to examine the proxies that were submitted to elect a new
This is both an interesting and unusual case because Mr. Fortunato did
not sue the corporation for denying his right to examine the
corporation’s records under Sections 55(3) and 55 (8-10) of the
Condominium Act but three individual directors:
Shah Jahan Khan
They were the three directors, out of five, who refused him the right
to inspect the proxies.
Fortunato also cited Articles 52(7), 37(1a & b) and 38(2) of the
Act to state that the proxies needed to be retained for 90 days after
the election, the directors need to perform their duties and the
corporation should not pay when the directors have been found to be in
breach of their duty to act honesty and in good faith.
None of the three defendants appeared in court to defend the action.
Mr. Fortunato won a judgment of $500.00 plus costs of $175.00. The
pre-judgment interest was set at 1.3% from 01 November 2012 and post
judgment interest was set at 3%.
We will have to see how successful Nicoló is in collecting his award.
MTCC No. 932 v.
Lahrkamp, 2009 ONCA 362
Court of Appeal for Ontario
Laskin, Simmons and Juriansz JJ.A.
Heard: 10 March 2009
On appeal from the judgment of Justice Nancy Backhouse of the Superior
Court of Justice dated 28 April 2008.
Mr. Lahrkamp, a unit owner in a condominium, appealed an order obtained
by his condo corporation regulating and restricting the exercise of his
rights to examine condominium records and to obtain copies of them.
The board of directors applied for the order on the basis that the Mr.
Lahrkamp had made and pursued an unrelenting stream of requests for
records to the point that his conduct, in effect, amounted to
harassment of its management staff.
In its application, the board sought orders restraining Mr. Lahrkamp
from: harassing, communicating, or having contact with any member of
the board, management staff, security personnel, or any other employee
of the condominium; requesting further records from the condo; and,
coming within 25 feet of the management office.
The board also requested that Mr. Lahrkamp be ordered to either
dismantle or render inactive his Internet website.
The application judge found that Mr. Lahrkamp’s conduct to the staff of
the management office and to a member of the Board of Directors
amounted to harassment.”
She noted that although the Act did indeed give Mr. Lahrkamp the right
to examine the corporation’s records, he was not entitled to abuse that
right “by conducting a campaign by siege against the management office
On the basis of these findings, the application judge made an order
restraining Mr. Lahrkamp from:
|communicating with any employee
of the management office or member of the Board of Directors, other
than in writing; and
|entering or coming within 25
feet of the condos management office.
|Mr. Lahrkamp must request in
writing any records of the corporation that he wishes to receive; he
could not submit more than one request for the same record; and, if he
did submit more than a single request, the corporation would not be
required to provide a further response;
|Mr. Lahrkamp must pay in advance
the photocopying charges for any document he requested; and
|Mr. Lahrkamp was not permitted
to review any records in advance of a request for production.
The application judge awarded the corporation costs in the amount of
$30,000, and granted the respondent a further $15,000 as “additional
actual costs” under Section 134(5) of the Act.
Mr. Lahrkamp appeals the application judge’s decision on the merits, as
well as from her costs disposition. He advances several arguments.
The appeals court accepted that the application judge did not intend to
make a finding of actionable harassment. The record before the
application judge made clear that the relationship between Mr. Lahrkamp
on one side, and the board of directors and management staff, on the
other, was extremely strained.
That strained relationship, and Mr. Lahrkamp’s contribution to it,
provided a basis for an order regulating the manner in which he should
exercise his rights under the Act. Such an order was justified and
required to ensure the parties’ relationship remained workable.
On the particular facts of this case, the motion judge’s remedy, while
is entitled to deference, is too extreme to be sustained.
Given the corporation's acknowledgement that Mr. Lahrkamp's behaviour
did not amount to actionable harassment, we were not persuaded that the
orders made by the application judge prohibiting Mr. Lahrkamp from
exercising his statutory right to examine the condo’s records, coming
within 25 feet of its management office, or communicating with members
of the board of directors or management staff other than in writing,
Accordingly, we would set aside these injunctive aspects of the
application judge’s order.
We would leave in place the application judge’s orders that Mr.
Lahrkamp make his requests to examine documents or for copies thereof
in writing, that he not make more than one request with respect to the
same record, and that he pay in advance the reasonable photocopying
charges of any copies of records that he requests.
The appeals court stated that it is for the board to decide what notice
is reasonable and what is a reasonable time and place for Mr. Lahrkamp
to examine the records.
We would allow the appeal in part and set aside the injunctive
components of the application judge’s order as discussed above and
dismiss the remainder of the appeal.
Counsel agreed that the costs of the successful party on the appeal
should be fixed in the amount of $30,000, inclusive of disbursements
and GST. Given Mr. Lahrkamp’s partial success, costs of the appeal are
fixed in his favour in the amount of $20,000, inclusive of
disbursements and GST.
The result of the appeal changes the relative success of the parties on
the application. The costs of the application are varied and fixed in
the amount of $20,000, inclusive of disbursements and GST, in favour of
the corporation. This amount includes the “additional actual costs”
factor under s.134(5) of the Condominium Act.
MTCC No. 932 v.
Small Claims Court—Toronto, Ontario
 O.J. No. 6113
No. TO 88334/09
M.D. Godfrey J.
Date: 29 Oct 2010
The plaintiff in this action, pursuant to section 55 of the Condominium
Act ("the Act") seeks damages of $500.00 based upon the alleged failure
of the defendant to provide certain records set out in the plaintiff's
amended statement of claim. The plaintiff also seeks production of
these records for examination. The defendant takes the position that
the plaintiff is not entitled to the records because:
There appears to be no dispute that the plaintiffs requests for records
were made in writing, and the plaintiff requested in writing the
$500.00 penalty provided by subsection 55(8) of the Act.
|the Act inferentially requires
the plaintiff to provide a reason for every requested record (see
|the Act does not allow for the
release of certain exempted documents (see sub clauses 55 (4)(b) and
|the Act permits refusal of
records if a reasonable excuse exists for not providing the said
records (see subsections 55(8) and 55(10)).
The plaintiff and defendant had widely divergent opinions as to how
subsection 55(3) should be interpreted. The defendant felt that every
request for records must be accompanied with a reason for the requested
records, which reasonably relates to the purposes of the Act. The
plaintiff opined that the records were an "open book" for the
I do not agree with the blanket proposal of the defendant that every
request for documents must be accompanied by reasons for the request.
While I agree with the defendant's position that the Board is charged
with the duty of "balancing the private and communal interests of the
unit owners", I do not believe that every request automatically
requires a reason for the request. A reason reasonably related to the
purposes of the Act for some requested documents may be self evident
from the surrounding facts, or may be reasonably inferred from the
nature of the record requested. The right of a corporation to refuse
records may be appropriate where the actual motivation behind the
request is being challenged, or the burden and expense to the
corporation is in issue. To create a universal rule to apply to every
conceivable request is impossible. It is necessary to look at the facts
surrounding each request to determine whether the condominium
corporation had a reasonable excuse in not providing the records for
Each record requested by the plaintiff will be considered separately
unless otherwise noted.
Front Lobby Expenditures, Letters of Representation and
2006 General Ledger
The request for the above noted items clearly involve a significant
burden and expense to the defendant. The plaintiff refused to provide a
reason for these documents claiming that the Act did not require him to
Despite the fact that the defendant followed proper accounting
practices as set out in the Act, the evidence at trial showed that the
plaintiff wanted to satisfy himself beyond standard auditing procedures
that everything was in order.
From that perspective the plaintiff was on a pure "fishing expedition"
without a shred of evidence to support his suspicion of impropriety in
regard to the front lobby expenditures, any other audited expenditure,
or the letters of representation.
The weak basis for the requested records together with the burden on
the defendant, both in time and money, allows me to conclude that the
defendant had reasonable excuse not to provide the aforementioned named
Relating to Suite 1407 (the Plaintiff's residence) from 2003
I find that the defendant had a reasonable excuse to deny these records
on the basis that a general search would have been expensive and too
time consuming for the defendant. The plaintiff again did not provide
reasons to counter the defendant's position in denying the records.
The request for the owner list was properly denied by the defendant.
Subclause 55(4)(c) as a general rule exempts the right to examine
records relating to specific units or owners. The plaintiffs reason for
wanting the list was described as a need to communicate with others.
The reason provided was clearly too vague and infringes on the privacy
rights of the communal owners.
Before dealing with the remaining record requests, it is necessary for
me to comment on the exception in subclause 55(4)(b) as discussed in
the Divisional Court case of Fisher v. Metropolitan Toronto Condominium
Corp. 596, 2004
CarswellOnt 6242. The court in that case stated that the litigation
privilege in subclause 55(4)(b) can be claimed if litigation was being
contemplated by the party requesting the records, but that the
privilege applied only to records that related to the contemplated
The facts of that case are clearly distinguishable from the facts of
this case. In Fisher, the court was satisfied on the facts that the
requested records sought related to litigation that was being
contemplated by the plaintiff at the time the request was made, and
therefore were exempt under subclause 55(4)(b).
Proxies and Ballots used at the AGM of 2009 and 2010
I am unable to conclude on the evidence that the request for proxies
and ballots are connected to the plaintiff's desire to commence
litigation as alleged by the defendant.
Although the defendant attempted to portray the plaintiff as a
litigious person, I cannot conclude on a balance of probabilities that
the examination of these records in itself is being done for the
purpose of commencing litigation.
The plaintiff made it clear in his e-mail of August 18th, 2009 that he
wanted the proxies and ballots for "validation of election results"
(see Exhibit 12, Tab 1, page 53). This statement alone does not allow
me to conclude that litigation was likely to ensue.
The reason provided was valid and inferentially applied to the
plaintiff's request for the year, 2010 as the plaintiff was an
unsuccessful candidate for the Board in 2009 and 2010. The 2010 meeting
had a significant number of proxies (75-80).
The plaintiff's worry about the 2009 results stemmed partially from his
concern over the April 17th, 2009 newsletter referencing the 2009
Annual General Meeting (AGM) where the plaintiff is described as
somebody who if elected would be virtually impossible to work with.
The defendant took the position that the plaintiff waived his right to
complain regarding the proxies since he was given an opportunity to
examine the said proxies but chose not to do so. The plaintiff claimed
that his right to examine was subject to an improper condition, that
being that he had to review the proxies in a separate room thus missing
I am not prepared to accept the evidence of the plaintiff that the
defendant was given an unconditional choice to review the proxies and
therefore the defendant cannot rely on the defence of waiver or
Furthermore, I find that 'Rules of Order' as set out in "Nathan's
Company Meetings" are guidelines only, and as such I am not convinced
that the Rules of Order set out in that text have universal
applicability to the facts at hand.
Notices of House Rules
Subsection 58(6) of the Act entitles owners to a notice of a made,
amended or repealed house rule.
Accordingly, the entitlement of the plaintiff to such a record is an
example of a request where a reason should not initially have to
accompany the request.
The plaintiff's concern about the validity of the house rules was
evident to the defendant, when the defendant was unable to satisfy the
plaintiff of the existence of a documented house rule regarding the
restriction on dogs, and the inability of the defendant to properly
explain away the discrepancy in two differently worded rules concerning
the number of cats allowed.
The defendant was unable to provide me with a reasonable excuse for not
providing records of the house rules to the plaintiff.
Board of Directors Meetings -- December 4, 2007 to Present
The availability of minutes of the Board meetings seems so fundamental
to the rights of the individual unit own-ers, that I see no basis
initially that a reason should be provided.
If the corporation claims to have a reasonable excuse not to provide
these records then they must establish a foundation to refuse the
request (e.g. communal rights are being infringed, or a statutory
The evidence does not disclose that the defendant had a reasonable
excuse to refuse the plaintiff's request for the minutes in question.
The present action could have been avoided had the plaintiff and
defendant been able to communicate with each, other in a manner which
would have allowed them to appreciate each others concerns, and the
basis for the position they were taking.
The legislation does not specifically require a reason for every
request, nor a reason for every refusal of a record.
Suffice it to say, that in order to avoid a judicial determination
under subsections 55(8) and 55(10), each side must be prepared to have
a rational, open and sympathetic dialogue of their respective potential
competing interests. Without such a dialogue, avoidance of a court
application is likely to be remote. Based on the foregoing I order as
(a) Judgment for the plaintiff for $500.00 plus court
costs of $175.00 and prejudgment interest at court rate from September
1, 2009; and
(b) The defendant to produce for examination the
proxies and ballots used at the AGM of 2009 and 2010, the minutes of
the board of directors meeting from December 4, 2007 to the present and
all notices of house rules as provided in subsection 58(6) of the Act.
All such records are subject to the orders made by Justice Backhouse
dated April 28, 2008.
932 v. Lahrkamp, 2012 ONSC 6326
File No: 222/11
Heard: 06 December 2012
Mr. Lahrkamp sought election as a candidate to the Board of
Directors of the corporation. Mr. Lahrkamp was not elected. Following
the election, he requested access to the proxies and ballots in order
to validate the
The corporation refused to provide Mr. Lahrkamp with access to the
proxies and ballots that reflected the votes cast as part of the
election. As a result, Mr. Lahrkamp brought an action in the Small
Claims Court for an order requiring their production.
The judge ordered that the proxies and ballots used in the election, as
well as other records of the corporation be produced to Mr. Lahrkamp.
After the judgment was rendered and the appeal period had expired, the
corporation brought a motion to vary the judgment. It sought to add a
term that the proxies were to be redacted by deleting names and
signatures of the owner, and the unit number from each proxy. The judge
allowed the motion and varied the judgment accordingly.
Mr. Lahrkamp appeals the variation and seeks to reinstate the judgment
as originally issued. He seeks production of the proxies without
The corporation stated that this Court has no jurisdiction to consider
this appeal. The Courts of Justice Act, R.S.O. 1990, c. C.43
provides for appeals from the Small Claims Court. Insofar as it is
relevant here, it states:
An appeal lies to the Divisional Court from a final order of the Small
Claims Court in an action, (a) for the payment of money in excess of
the prescribed amount, excluding costs, … (Courts of Justice Act,
supra, s. 31)
The problem is that the original judgment is not the order from which
an appeal is now being taken. The Notice of Appeal makes clear that the
order being appealed is the one which varied the trial judgment to
allow for the redaction of the proxies.
The Small Claims Court is designed to be an expeditious and informal
forum for the resolution of disputes. The idea is that the disputes it
has jurisdiction to deal with are to be dealt with quickly, cheaply and
with less reliance on formal rules. The limited right to appeal is
consistent with this approach.
Quite apart from whether this Court has jurisdiction to consider an
appeal, the position of Mr. Lahrkamp is that the Small Claims Court
judge had no jurisdiction to place any term or condition on any order
requiring the production of records of the condominium corporation. Mr.
Lahrkamp referred to the Condominium Act, 1998, supra, s. 55(10), which
If a corporation without reasonable excuse does not permit an owner or
an agent of an owner to examine records or to copy them under this
section, the Small Claims Court may order the corporation to produce
the records of examination.
Based on this, counsel for Mr. Lahrkamp submitted that a Small Claims
Court judge has only two options: he or she may (1) order or (2) deny
This is too narrow a reading of the Condominium Act. It fails to
account for the authority provided to the Small Claims Court judge, by
the rules applicable to that court.
The Courts of Justice Act, s. 25 provides the following direction:
The Small Claims Court shall hear and determine in a summary way all
questions of law and fact and may make such order as is considered just
and agreeable to good conscience.
The Small Claims Court judge would have the jurisdiction to vary or
clarify an order previously made.
When the corporation came to act on the order it became concerned that
it would have to redact the identity of the individual unit owners or
be in breach of the Condominium Act, 1998, s. 55(4)(c).
The Mr. Lahrkamp refused to accept the redaction and, within an email
exchange, asked whether the corporation planned to bring a motion “for
clarification”. The judgment made with respect to the motion begins
with the phrase: “the defendant has brought a motion for clarification
The reasons making the clarification accept the concern that the
redaction would serve to protect the privacy rights of the other
owners. There is nothing to suggest that this is not a valid
consideration for a proper resolution to a problem with the order, that
became apparent after it had been issued.
In any event, I find that the Small Claims Court judge had the
jurisdiction to clarify the order. There is no reason why the
clarification should be set aside.
For oral reasons delivered today, the appeal is dismissed. Costs are
sought on a full indemnity scale in the amount of $10,265.83. It is
said the appeal was necessary and that the issue of jurisdiction was
raised at the outset. Counsel for the Mr. Lahrkamp suggests that costs
on a partial indemnity scale are more appropriated and that these
should be reduced to account for the time this appeal should reasonably
On this basis costs would be $5,432.38. As a matter of policy, the
Condominium Act suggests that condominium corporations should not
be put to unnecessary expense. In effect these applications are
lawsuits among owners of, in part, a shared asset.
On the other hand, disputes do arise and sometimes have to come to
court. Costs to the corporation in the amount of $7,932.38.
Michael Lahrkamp vs MTCC No. 932
Court file No: SC-13-31717-00
Before: J Prattas DJ
Released: 08 June 2017
There was a 12 day trial to hear these three actions that started in 2007.
Mr. Lahrkamp is a unit owner at the Empire Plaza Condos at 33
University Ave. His dispute with about access to condo documents and it
started in 2006 with the condo lobby renovating project.
Mr. Lahrkamp is requesting a large number of documents from 2007 to 2015 and for $1,500; $500 for each claim.
The condo countered with five reasons to deny giving access to the records including:
• many of the requests are bared by the Limitation Act.
• the proceedings are vexatious.
• this is a fishing expedition & Mr. Lahrkamp is litigating for sport.
The 17 page judgment contains the following important points from a judgment by Justice Godfrey-2011:
|A verbal direction by an owner to add a candidate's name to a proxy does not invalidate the proxy.
|the addition of a candidate's name by a third party does not invalidate the proxy.
J Prattas DJ wrote: As a general proposition, proxies are presumed to be genuine unless evidence is presented to the contrary.
Inspection of records
A fair reading of the Act would lead one to conclude that the statute
seems generally worded in favour of transparency, openness and
The Transparency Principle is also supported in jurisprudence.
However, the Transparency Principle does not give an owner carte blanche to make unreasonable demands for records.
A reason to inspect records is not always necessary.
In determining if a request should be granted or not, the criteria to
be used should be objectively applied: what does a reasonable owner
require to inform him/herself about the proper functioning of his/her
Costs of proxies
The costs for reacted proxies were set at:
$1.00 per reacted page due to the third generation pages required to insure reacted information cannot be read.
$1.00 per proxy labour costs of reacting the private information.
So a total of $2.00 a page.
Costs of board meeting minutes
The cost of unreacted pages is 25 cents each.
The costs for reacted third generation pages was set at $1.00 a page.
Labour charges allowed was $1.00 per set of minutes.
Stewart v. TSCC
Small Claims Court
Here is an interesting case that was published on the Condo Law News website:
Small Claims Court Dismisses Claim for
Disclosure of Draft Minutes
by Christy Allen on September 19, 2013
A unit owner recently brought a condominium corporation to court for
the alleged failure of the corporation to disclose records of the
corporation pursuant to section 55 of the Condominium Act in Stewart v.
Toronto Standard Condominium Corporation No. 1591. In particular, the
owner claimed (under section 55) for the following:
Production of the minute-taker’s personal notes from the corporation’s
That the AGM minutes were inaccurate and the minute-taker’s draft
minutes had been improperly revised by the Board;
A penalty of $500.
After a full trial on the matter, the claim was dismissed by the Court.
The Court said that “the notes of the note-taker are a work-product and
not a record” for the purposes of Section 55. The Court also said that
the term “records” does not include “drafts, work in progress, rough
copies, et cetera”.
The Court also said that the Board’s minor adjustments to the draft
minutes were not improper. The Court added the following; “the minutes
are intended to be an accurate summary of the events that took place
not a verbatim transcript.”
This case confirms that documents that are considered to be in draft
form, or that are otherwise a “work in progress”, do not constitute
“records” of the Corporation within the meaning of section 55 of the
Act. This would appear to suggest that only once a document is in
“final” form does it constitute a “record” of the Corporation. This
being said, in our view, it is nonetheless possible that some types of
“draft” documents (such as draft reserve fund studies) might be
considered to be records of the Corporation. This however, would depend
upon the situation.
The Court in this case also took issue with the fact that, “it also
became evident that being critical and looking for ways to find the
board to be negligent has become a sport for (the owner)”. The Court
said that the plaintiff’s requests amounted, in this case, to a “pure
fishing expedition, without evidence to support his suspicion of
impropriety by the members of the board of revising, to their benefit,
the minutes that were taken at the annual general meeting held on June
The Court awarded costs to the condominium corporation that were higher
than the normal costs permitted in Small Claims Court. The Court took
particular issue with the plaintiff’s behavior and conduct towards the
condominium corporation in the context of the claim and otherwise, and
found the following:
“They have the luxury of time to do
nothing but find ways to criticize the actions of the board. You know
what, instead of criticizing I would have had more respect for the
plaintiff if he had taken the initiative and perhaps had become a board
member, or come up with solutions on how to better run the board than
to stand on the sidelines and do nothing but criticize. So given that,
I am going to use my discretion to impose a higher amount than is
typically awarded because I do not want this behavior to continue… I
think it does interfere with the functioning and the proper running of
The Court clearly decided to send a message to the plaintiff that
further unfounded and unsupported allegations against the board would
not be tolerated by the court.
This content is not intended to provide legal advice or opinion as
neither can be given without reference to specific events and
© 2014 Nelligan O’Brien Payne LLP.
Stewart v. TSCC No. 1591
Divisional Court File No : 353/12
Justices Lederman, Sachs and Nordheimer
Date: 03 February 2014
Mr. Stewart sought a judicial review of the above Small Claims decision
that ordered him to pay $2,000 in costs.
The appeals court decided that the conduct of the deputy judge did not
rise to the level required to find a reasonable apprehension of bias.
Nor was there a basis to conclude that there was any breach of natural
justice or breach of procedural fairness.
Mr. Stewart sought a ruling regarding his access to documents. He lost
that issue and is required to pay costs as a consequence. That did not,
however, give the deputy judge jurisdiction to penalize the applicant
because the deputy judge took a negative view of the applicant’s
conduct towards his condominium corporation.
The application was allowed and the award of costs was reduced to $150
under the provisions of rule 14.07 (given the unaccepted offer to
settle) plus the disbursements of $500.
No costs were awarded.
So who won?
So, the condominium won the right to withhold the draft minutes but it
cost them most of their legal fees for the small claims court action
plus all of their legal fees for the appeal.
Mr. Stewart recovered $1,850 in small claims costs but had to pay his
legal costs to appeal the Small Claims decision.
Yet he may have done a service for future condo owners who go to small
claims court seeking to examine corporation documents.
v. PCC No. 245
Superior Court of Ontario
Court File No: CV-14-146-00
Before : Justice Lemon
Date: 06 May 2015
PCC 245 is a non-profit condominium corporation of 278 residential
units located at 3700 Kaneff Crescent in Mississauga.
Ms. Wu says that PCC 245 has failed to produce documents that she is
entitled to review. She asked for an order that:
|PCC 245 direct all engineers and
professionals involved with her unit,
including Valcoustics, to release any and all information and or
documents about her unit directly to her, and an Order directing PCC
245 to instruct its engineers and professionals to answer Ms. Wu’s
questions relating to their reports and recommendations;
|PCC 245 pay a $500 penalty fee
to her in accordance with subsection
55(8) of the Condominium Act, 1998 for refusing to provide relevant
documents within a reasonable amount of time;
|PCC 245 return the $150 payment
that she made relating to production of documents.
Ms. Wu told the court that she followed up on multiple occasions with
Peel and the engineers directly in an attempt to secure copies of the
reports from the tests performed by the condo's engineers
On May 2, 2013, Valcoustics performed a second sound investigation in
the unit. The original report from the May 2013 sound test is dated May
27, 2013. However, Peel did not produce this report to Ms. Wu until
August 28, 2013. She submits that Peel had instructed its engineers to
alter the report and remove on-site observations and other data from
the report. The version of the report produced to Ms. Wu was
approximately the sixth version of the report. Ms. Wu believes that
Peel did not want her to see how they had edited the report.
Ms. Wu says that Peel has refused to produce documents. It then
threatened to lien her unit unless she paid a $150.00 charge for
copying documents. She submits that Peel has a clear statutory
obligation to provide her the following corporate records:
|a complete and unaltered copy of
the Second Report prepared by Valcoustics on or about May 29, 2013.
|complete and unaltered copies of
all correspondence and agreements
between Peel and Valcoustics in regards to sound and/or vibration
testing on Peel’s premises.
|records or documents detailing
maintenance, repair or other work
completed, scheduled, proposed or otherwise contemplated in relation to
the building’s elevators, HVAC or mechanical systems.
Section 55 of the Condominium Act, 1998 imposes a general obligation on
PCC 245 to prepare and maintain particular corporate records. This
section also entitles every owner to access these records “at a
reasonable time” for “all purposes reasonably related to the purposes
of this Act” provided the owner has given the condominium corporation
reasonable notice in writing. The penalty for non-compliance (failing
to produce a document) is $500.
“There is little ...
that would be exempt from right of inspection by unit owners.”
The rights of access conferred in section 55 are broad. There is little
that would be found in the files of the Corporation that would be
exempt from right of inspection by unit owners. This section should
receive broad interpretation to allow unit owners open and liberal
access to corporation documents and records.
Further, by consent order dated July 2, 2014, Peel was ordered to
produce documents no later than July 15, 2014. Four large cerelox
volumes of documents were delivered, in August and October, 2014. A
further report dated September 25, 2014 was produced in PCC 245’s
motion record for an order staying this application.
Ms. Wu submits that she is entitled to be compensated in the amount of
$500 for this non-compliance.
PCC 245 charged Ms. Wu a fee of $150.00 for production of documents,
which Ms. Wu paid to avoid a lien being placed against her unit, even
though Peel failed to produce all documents requested and instead
produced unsolicited duplicate and irrelevant documents;
PCC 245 replies that even in circumstances where the right to examine
records did not apply, the condo has never denied Ms. Wu permission to
examine the corporate records.
On August 18, 2013, after this litigation matter had commenced, Ms.
Wu’s counsel requested copies of the following documents under
subsection 55(6) of the Act:
|All records relating to the
vibration/sound issue for Ms. Wu’s unit.
|The agreement between Peel and
Valcoustics for the May 3 [ sic], 2013, sound test.
|Minutes of all board meetings
since December 2009 at which this issue was discussed.
Under subsection 55(6) of the Act, a pre-condition to providing records
is that the owner pays a reasonable fee to compensate the corporation
for the labour and copying charges. This payment was not provided along
with Ms. Wu’s counsel’s request.
Under subsection 55(4)(b) of the Act, the right to examine
records does not apply to records relating to actual or pending
litigation. This dispute had already been submitted to mediation and
arbitration when the request was made. The requested records related to
this litigation dispute. When the request was made, Ms. Wu did not have
a court order requiring production.
Notwithstanding that the right to examine records did not apply, PCC
245 delivered to Ms. Wu 500-750 pages of documents relating to the
request. The requests were overly broad but the condo’s property
manager nevertheless performed a diligent search and prepared the
package of documents.
Ms. Wu refused to pick up the package of documents at the security
desk. Ms. Wu’s counsel received electronic copies via email but
repeatedly requested further documents despite Ms. Wu’s non-payment of
PPC 245’s reasonable labour and copying fees of $150.00. Eventually,
Ms. Wu paid under protest.
PCC 245 submits that it has never refused to produce documents except
where they were subject to solicitor-client or litigation privilege.
The original package included copies of the draft Second Valcoustics
Report dated June 24, 2013, and board meeting minutes dated June 27,
2013, which reference the May 29, 2013, draft Second Valcoustics
Report. The disclosure of these documents belies any intention to
conceal the existence of correspondence or draft reports from
Valcoustics. Any omission of documents which may have occurred was not
intentional but due to the broadness of the request and the sheer
volume of documents to be searched in order to respond to the request.
The judge stated: On this record, I cannot determine what was produced
and when. It appears that some of the production issues arose within
the contemplated litigation itself. That is a topic for costs and not a
free standing order. That claim is dismissed.
An expense of $150 to pick up the records is authorized by the Act and
is reasonable. Ms. Wu should have picked up the documents without
complaint. That claim is dismissed.
Wu vs Carleton Condominium Corporation
Small Claims Court
Court File No: 15-SC - 134445
DATE: 20 April 2016
Deputy Judge I.G. Whitehall, Q.C.
The plaintiff asked to see the board minutes for the previous eight
years and the owners' names and address for service. She was not
satisfied that she only received the mailing addresses of the owners,
she wanted to have the owners’ e-mail addresses as well. The plaintiff
also took issue with the fact that redactions would be made to the
minutes. She sought the $500.00 penalty under s. 55(8) of the Condo Act.
As noted by Mr. Justice Cavarzan in McKay v. Waterloo North Condominium
Corp the purpose the Condominium Act is provide owners and open
book to the affairs of the corporation.
However the court ruled that some reacting of the minutes was justified
and that the condo corporation did not have to provide the owners'
Wu vs Carleton Condominium Corporation
Small Claims Court
Court File No: 15-SC - 134445
DATE: 16 May 2016
Deputy Judge I.G. Whitehall, Q.C.
The plaintiff submits that each party should bear its costs. The
plaintiff’s primary points are that success was divided because some
documents were disclosed in the course of the trial and but for the
trial those documents would not have been produced.
Finally, the plaintiff argues that the case was one of first impression
clarifying whether e-mail addresses form Section 47(2) records and
therefore the result, clarifying the law benefited both parties.
The defendant seeks $21,290.90 costs and disbursements, including HST
on a full indemnity basis, chiefly on two grounds, the indemnity
provision of the Corporation's by-laws and the alleged unreasonable
behavior of the plaintiff in bringing the action. The by-laws provide
Each owner shall indemnify and save
harmless the Corporation from and against any loss, costs, damage,
injury, claim or liability whatsoever which the Corporation may
suffer or incur (including all related legal costs incurred by the
Corporation) resulting from or caused by a breach of the Act or the
Corporation’s Declaration, By-laws or Rules (as amended from time to
time). or by any act or omission, of such owner, his/her family,
guests, servant: agents or occupants of his/her unit.
In my view the Corporation defended because it did not wish to live
with a precedent which an agreement to produce the documents sought
would have entailed. In that sense it was its “act or omission” which
caused it to incur $20,000.00 costs, be it that the claim was initiated
by the plaintiff.
If co-owners were faced with thousands of dollars in costs in the event
they are unsuccessful in seeking to enforce their statutory rights the
purpose of the legislation would be frustrated. I say that in
particular where there is no evidence of bad faith or unreasonable
conduct on the part of the co-owner seeking the production of documents.
concluded that this case continued to be governed by section 29 of
the Courts of Justice Act and the principle of proportionality. The
amount in issue was $1,000. Accordingly, the corporation should receive
the sum of $150 in costs plus disbursement which I would fix at $340
including HST for a total of $490.
So the owner(s) are out $490 and the corporation $20,802.90.
Senchire v Summerhill Property Management
Superior Court of Justice
Before: Justice S.F. Dunphy
Date: 03 June 2016
This dispute had three parts. The two owners/directors disputed the
condo corporation's right to charge a monthly maintenance fee for a
purchased parking spot when the corporation slept on their rights for
many a year (they can), there was an application by the owners to
remove them from the board so they asked for an injunction to stop the
requisition meeting and that application failed. The part I wish to
focus on here is on the right to examine the corporation's records.
When the dispute over fees for the Parking Units came to the surface in
2014, the two applicants were directors of MTCC 856. They requested
access to documentary information including minutes, financial
statements, cheques etc. All or substantially all of what they
requested, they had access to whether as directors or owners under the
MTCC 856 was willing to provide the Applicants with access to the
documents they wish to view as long as they attend at Summerhill’s head
office for this purpose and specify the documents they wish to view
including the year and date. They may have copies of such documents
upon payment of the reasonable cost of photocopying. Only those
documents not prohibited from disclosure pursuant to the Condominium
Act may be viewed. This arrangement was declared by the Applicants to
At this third hearing, one of the issues remaining in dispute was what
rights to information can the applicants demand on an on-going basis?
The applicants take objection to the fact that the documents are only
being made available at Summerhill's head office rather than at MTCC 856’s management office.
Justice Dunphy ruled that this objection strikes him as a reasonable
one. After some discussion among the parties, the respondent MTCC 856
explained that the originals of documents are kept at Summerhill’s
offices but agreed that copies of the requested documents would be made
available for inspection at the management office in the condominium
itself if demanded. It appears that the applicants are content to have
access to copies of documents at the condominium itself and will
arrange to inspect the originals at the management company’s office if
and when they feel a need to have access to original documents.
MTCC 856 agreed to make copies of the financial statements and
directors minutes and other documents that are subject to inspection
under the Condominium Act available for inspection on site and to
permit copies thereof to be made subject to reasonable copying expenses
in accordance with existing policies. These will be made available in a
timely way with reasonable advance notice.
The corporation filed an outline of costs for the entire proceeding
(including before Justice Myers and Justice Stewart of $24,611.88 on a
partial indemnity basis as compared to a “full rate” of $29,855.08. The
“full rate” reflects a discount on counsel’s hourly rate offered to
MTCC 856. All figures are inclusive of disbursements and HST.
In the judge's view, success has been somewhat divided on this
application although the respondents have clearly won the main point.
The applicants brought the application to obtain access to the
information they needed to press home their “main” dispute about the
Parking Unit issue. While the respondent has eventually come to a
reasonable accommodation on access, it is apparent that the initial
response to this brewing dispute was to treat the applicants as a
hostile camp and a reasonable compromise on access to information was
only reached in court rather than outside of it.
After due consideration of all of the circumstances, I find that I must
give somewhat greater weight to the quasi-class action nature of the
proceeding from the applicants’ perspective, the failure of the
respondents to have headed the access to information issues off early
by timely admissions while not losing sight of the aggravating fact of
the applicants’ non-cooperation in settling the orders. I have
determined to fix costs in the amount of $7,000 all-inclusive payable
by the applicants to the respondents on a several basis (i.e. $3,500
The law firm Clifton Kok LLP wrote an interesting paper on this case.
Association Required to Provide Names and Addresses
of Delinquent Owners (Kansas)
Condo Law Grp Blog
By Aalerie Farris Oman
22 April 2016
The Kansas Court of Appeals held that Kansas law requires a homeowners
association to disclose the names and addresses of delinquent
homeowners. Although this case was decided in Kansas, it could be an
indication of how a Washington court might decide a similar issue.
The recent case of Frobish v. Cedar Lakes Village Condominium
Association concerned the Kansas Uniform Common Interest Owners Bill of
Rights Act, which required that a homeowners association maintain
accounting records for five years and make records public, with the
option to withhold certain records for privacy reasons. The Cedar Lakes
Association’s board decided that the names and addresses of delinquent
owners were records that did not have to be disclosed.
Frobish, a property owner at Cedar Lakes, made several requests to the
association for the names and addresses of delinquent owners, but the
association denied his requests. Frobish sued the association, and the
case ultimately made its way to the appeals court.
The appeals court held that Kansas law required that the association
keep a record of dues payments, including who has paid and who has not.
The information that could be withheld under the law included documents
that were protected by privacy rules already. However, there were no
privacy protections for delinquent owners, especially when any lawsuit
against a delinquent owner for nonpayment would be public record.
The court also stated that the payment of dues was very important to
the operation of an association, and disclosure helps the association
function by holding owners accountable. For these reasons, the court
held that the names and addresses of delinquent owners were not the
type of information that could be withheld.
If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!
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