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Examining records

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.

The owners' rights to examine records
Board refused condo documents, individual directors must pay
An appeal against examination restraints     Lahrkamp Part 1
Owner wins small claims case                     Lahrkamp Part 2
Board allowed to redact the proxies            Lahrkamp Part 3
Nine year dispute ends (?) in 12 day trial    Lahrkamp Part 4
Stewart v. TSCC No. 1591—Don't go fishing
Stewart v. TSCC No. 1591—Stewart appeals
Wu v. PCC 245
Wu v Carleton Condominium Corporation    Judgment
Wu v Carleton Condominium Corporation    Costs
Senchire v Summerhill Property Management   Access to records
Providing the Names and Addresses of Delinquent Owners   (Kansas)


McKay et al. v. Waterloo North Condominium Corp. No. 23
 [1992] O.J. No. 2435
Action No. 2820/92
Ontario Court (General Division),
Justice Cavarzan
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
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 ruling
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 expense.

Any owner or agent of an owner duly authorized in writing may inspect the records on reasonable notice and at any reasonable time.

Guidance
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 reasonable access.

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" requirement.

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 so.

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.

Conclusion
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.

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Refused condo documents—condo directors must pay
N. Fortunato  vs  S. Sardar (aka Hussain), A. Karim & S. Khan
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 board.

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:
Anver Karim
Shah Jahan Khan
Safdar Sardar

They were the three directors, out of five, who refused him the right to inspect the proxies.

Mr. 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.

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MTCC No. 932 v. Lahrkamp, 2009 ONCA 362
Docket: C48853
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 application
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 judgement
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 and directors.”

On the basis of these findings, the application judge made an order restraining Mr. Lahrkamp from:
1.
communicating with any employee of the management office or member of the Board of Directors, other than in writing; and
2.
entering or coming within 25 feet of the condos management office.
3.
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; 
4.
Mr. Lahrkamp must pay in advance the photocopying charges for any document he requested; and
5.
Mr. Lahrkamp was not permitted to review any records in advance of a request for production.
Costs
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.

The appeal
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, were supportable.

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.

Judgment
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.

Costs
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.

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MTCC No. 932 v. Lahrkamp
Small Claims Court—Toronto, Ontario
[2010] 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:
1.
the Act inferentially requires the plaintiff to provide a reason for every requested record (see subsection 55(3));
2.
the Act does not allow for the release of certain exempted documents (see sub clauses 55 (4)(b) and 55(4)(c)); and
3.
the Act permits refusal of records if a reasonable excuse exists for not providing the said records (see subsections 55(8) and 55(10)).
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 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 condominium owners.

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 examination.

Each record requested by the plaintiff will be considered separately unless otherwise noted.

1.    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 provide one.

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 records.

2.  Records 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.

3.    Owner List
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 litigation.

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).

4.    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 the AGM.

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 estoppel.

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.

5.    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.

6.    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 exemption applies).

The evidence does not disclose that the defendant had a reasonable excuse to refuse the plaintiff's request for the minutes in question.

Opinion
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 follows:

Judgment
(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.

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MTCC No. 932 v. Lahrkamp, 2012 ONSC 6326
Divisional Court
File No: 222/11
Justice Lederer
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
election results.

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.

Redacting the proxies
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 redaction.

Jurisdiction
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 says:
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 production.

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.

Costs
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 have taken.

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.

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Michael Lahrkamp vs MTCC No. 932
Court file No: SC-13-31717-00
                       SC-14-9565-00
                       SC-15-10143-00
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.

Proxies
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 disclosure.

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 condo corporation?

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.

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Stewart v. TSCC No. 1591
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 AGM;
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 22nd, 2011”.

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 board….”

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 situations.
© 2014 Nelligan O’Brien Payne LLP.

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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.

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Jiakang Wu 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.

The applicant's postion
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)
a complete and unaltered copy of the Second Report prepared by Valcoustics on or about May 29, 2013.
(b)
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.
(c)
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.

The Act
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;

Respondent's postion
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:
(a)
All records relating to the vibration/sound issue for Ms. Wu’s unit.
(b)
The agreement between Peel and Valcoustics for the May 3 [ sic], 2013, sound test.
(c)
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.

Judgment
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.

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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.

Judgment
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' e-mail addresses.

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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.

Costs
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 in part:

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.

The award
Costs
The judge 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.

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Senchire v Summerhill Property Management
Superior Court of Justice
Docket:    CV-14-511552
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 Condominium Act

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 be acceptable.

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.

Costs
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 each).

The law firm Clifton Kok LLP wrote an interesting paper on this case.
http://bit.ly/28Nzf00

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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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