Board minutes are important documents as they are often the only way owners can get insight into what decisions are taken by the board of directors. The Condo Tribunal was asked to determine whether an owner was entitled to get 20 year old board minutes.
In the Bossio case, an owner sought to obtain copies of board meeting minutes going back to 1997 ! You read that right: some 20 years old minutes. The owner was seeking minutes of meetings from 1997 to 2001. She was also seeking the 2016 president report.
Are documents related to actual or contemplated litigation?
An interesting twist to this request is that this owner apparently sought these records in the context of what we will call a “dispute” with the corporation. She was seeking $141,500 for systemic harassment, defamation, mental pain and suffering and loss of income, all resulting from damage allegedly caused to her unit in 2010.
The corporation took the position that these records were covered by the exception applicable to records dealing with “actual or contemplated litigation”. The owner took the position that, since the Condo Act provided for mandatory mediation/arbitration, there was no actual or contemplated “litigation“. Some say tomato, others say tomahto. It is interesting that the owner would not sign a release as a condition of the disclosure of documents.
Decision of the tribunal
The adjudicator reiterated the “open books” principles with respect to accessing condo corporation’s records, but also reaffirmed that this right is not without limits. A right to records is not a free pass to make unreasonable demands for records. Specifically, while an owner does not have to disclose the reason for the request, the purpose of the request must be related to a person’s interest as an owner having regard to the purpose of the Act.
In the present case, the adjudicator concluded that the purpose of the request was to obtain evidence to support her claim against the corporation and that the documents were protected by the “actual or contemplated litigation” exception. I pause for a second to note that this owner may have been entitled to a wider disclosure of documents had she sought them in the context of actual litigation.
Interestingly enough, the Tribunal does not appear to have address the owner’s request for the president’s 2016 Report. While the reasons do not make that clear, one would expect this report to have been a document already distributed to the owners and not covered by the “contemplated litigation” exception.
The corporation sought to recover some $6,500 of the $10,900 it incurred in legal fees to respond to this matter. This was denied on the basis that the Condo Tribunal does not award cost unless there are exceptional reasons to do so. Being victorious in a case is not one of these exceptional circumstances, even if the position taken by the other party appears to be unreasonable in hindsight.