One of the many objectives behind the amendments to the Condo Act was to maintain and strengthen the “open books” principle by making an easier path for unit owners to access corporate records. The new Act also provided much needed guidance by identify many (but not all) of the corporate records as well as the applicable retention period for each of them.
Very good intentions but, as they say, the devil’s in the details.
Regrettably, the application of these laudable objectives has resulted in a fair bit of confusion. This is due in part to the fact that you need to consult both section 55 of the Act and section 13.1 of the Regulation to build your own list of what constitutes corporate records. You then need to use the old enigma machine to figure out the retention period for each of these records by feeding it the long, repetitive and overlapping legalese found at section 13.1 of the General regulation.
Fear not. We sat down and did the heavy lifting for you. At the end of this post, we provide you with our own Record Retention for Dummies chart.
The corporate records
There are 3 main sources of corporate records:
- Section 55 of the Condo Act;
- Section 13.1 of the general Regulation;
- Possibly your own by-laws.
Indeed, the starting point when attempting to identify your corporation’s records is to review section 55 of the Act. There, some 11 distinct records are listed as corporate records, including financial records, minutes, declaration, by-laws, rules, returns filed with the CAO, RFS, etc. Most importantly, section 55 also lists the following as corporate records:
- All records that are prescribed, if any;
- Any additional records specified in the corporation’s by-laws – in case one felt the urge to add to the plethora of records already listed.
Any time you see a reference to something being “prescribed”, you need to consult the regs adopted under Act. In this case, you have to review section 13.1 of O. Reg 48/01. There, you will find a hockey bag full of subsections, referring to other sections in either the Act or in the regulation. Those old enough will recognize the concept of the 1980’s Choose your own adventure books, where you have to jump from one paragraph to the other to follow the storyline.
How long must you retain the records for?
Once you have figured out what are your corporation’s records, you then need to figure out how long you must hold on to each of them. To do so, you need to digest subsection 13.1(2) of the general regulation. There again, rather than listing the corporation’s records in plain language, the subsections refer to sub-paragraphs in both the Condo Act and in the regulation, for you to build your own retention calendar. A sort of IKEA legislative construction exercise.
Still, at the end of the day, there are generally 3 different retention periods:
- 90 days
- 7 years
- At all times
If a record has been requested, you must extend the preservation period by 6 months. If litigation is commenced during that time frame, you must preserve the records as agreed or as ordered pending said litigation.
Finally, keep in mind that, if no retention period is specified, or when in doubt, the corporation should retain the records fo “the period of time the board determines as necessary to perform the corporation’s objects, duties or powers”.
Condo Record Retention for Dummies
If you’ve read this far, it’s likely because you are hoping to get an easy-to-use chart that will summarize all of the above. You’re in luck!
- Condo Tribunal rules on owners accessing condo records
- New Rules applicable to condo corporate records under the new Act
- Owners not allowed to get 20-year old board minutes