A recent court decision ordering a not-for-profit organization to disclose the email addresses of its members caused quite a stir in condo land this past week. This brings us to revisit a recurrent question: Are condo owners entitled to access the list of email addresses of other owners?
In case you are pressed for time, let me jump to the chase. The answer is “no”.
The Jazz-FM decision
First, let’s have a look at the decision which re-opened the debate over access to owners’ email addresses. While it does not deal with condos at all, many interesting parallels may be drawn from it.
It involved a not-for-profit radio station. A group of “dissenting members” sought to access the email addresses of all members to requisition a shareholder meeting. The radio station decided not to disclose its list of email addresses, citing privacy concerns. It is important to note that the radio station customarily communicated with its members via email.
The court criticized the narrow view and the adversarial approach taken by the radio station:
 … if there’s a dissident group, the best way to deal with that is at a meeting where they get to either stand or fall, but tossing roadblocks in the way of democracy [is] not a very helpful use of the corporation’s money in my view.
The court ordered the radio station to disclose the list of email addresses and ordered it to pay $20,000 in legal costs.
The day after the radio station ought to have disclosed the email list, it went back to court, asking not to have to comply with the order while it appealed the decision. It argued that forcing it to disclose the list of email addresses would cause irreparable harm. A second judge disagreed and wrote:
 Nor is there irreparable harm in a risk to member privacy. Members of a not-for-profit corporation allow the corporation and dissidents to contact them as an incident of membership. The corporation already uses email to do so. Levelling the playing field for dissidents enhances member democracy. It is not harm.
Does this ruling apply to condos?
Many in condo land celebrated this decision as paving the way to enhanced transparency and increased democracy by allowing owners to access the email addresses of their fellow owners. But can we import to condo law the principles identified in this case?
It is important to note that, while condos are also not-for-profit corporations, they are regulated by the Condominium Act, unlike this radio station who is likely regulated by the Corporations Act. [The Ontario Not-for-profit Corporations Act is not in force yet.]
The Condo Act sets out a comprehensive regime dealing with owners’ right to access and inspect corporation’s records. This regime is a stand-alone and exhaustive one, which fully regulates what records can be accessed, by whom and under what conditions. [I note in passing that the Corporations Act also has a regime dealing with shareholders’ right to access records. And to my surprise it is of a disarming simplicity.]
Section 55 of the Condo Act specifically grants condo owners (as well as purchasers or mortgagees of a unit) the right to examine or obtain copies of some (but not all) of the corporation’s records. One of the exceptions to this open-book approach is found under subsection 55(4). It expressly prevents owners from accessing records relating to specific units or specific owners (other than their own records).
There used to be a debate over whether this prevented owners from accessing the list of owners/mortagees. The recent amendments to the Condo Act clarified the question by expressly authorizing owners to access the record of owners and mortgagees maintained under section 46.1 of the Act. This list must include the name of the owners, the identification of their unit and their address of service. This right to access this list however must solely relate to someone’s interest as an owner, having regard to the purpose of the Act.
These amendments signaled a new era and appeared to have been aimed at allowing owners to communicate with each others.
But does this amendment allows owners to also access the email list? After all, the exception preventing an owner from accessing information about their neighbour remains. All that owners can access under section 55(4) is limited to the information identified under section 46.1: the name, the unit identification and the address of service.
Owners cannot access their neighbour’s email address
We’ve already blogged that, in our view, the address for service to which owners have a right of access does not include email addresses. In our view, under the Condo Act, an address of service under the s.46.1 register refers to a postal address. Whether we like it or not, the fact of the matter is that the law continues to treat email addresses as a different beast, preferring the reliability of the good old postal address.
If there was any doubt as to whether owners are entitled to get their neighbours’ email address, section 13.11(2)(.1) of the general regulation answers that question in the negative and confirms that owners are not entitled to access the record of the method of electronic communications entered into by other owners. What does that mean? In our view, it means that when “Owner A” authorizes the corporation to communicate with it electronically, this record is not accessible to “Owner B”.
“Owner B”, therefore, has access to the name, unit number and (postal) address of service of others but not to their email address and not to their phone number.
Balancing privacy and transparency in condos
I realize that some readers will find me antiquated and perhaps even somewhat obstructionist. After all, shouldn’t owners have a “right” to communicate with others? Perhaps. But long gone are the days of the Bell Canada Phone book where your name, address and phone number were listed for everyone’s viewing pleasure. We have evolved into a society that prioritizes and protects privacy over many other rights.
In line with this, society and lawmakers have decided that email addresses were worth protecting. Think of the anti-spam legislation. Think of PIPEDA. This, in part, is likely due to the anonymity, instantaneousness and pervasive nature of electronic communications. It is far too easy for “keyboard commandos” to send unwelcome or uninvited communications. It is far too easy nowadays to create a new anonymous email account to be used to fire off defamatory and/or inaccurate content. Courts have also cracked down on these kinds of abusive communications.
On the flip side, in today’s age, granting access to your neighbour’s postal address for the purpose of requisitioning a meeting or to discuss a common concern is as useful as a canoe without a paddle.
Yet, for every owner who wish to be able to communicate with all others, there is an owner who wants to be left alone. How can we best strike a balance between these two competing right?
What is the solution? Consent-base disclosure
When surveyed on whether owners should have access to their neighbour’s information, 47% of our readers felt that access to owners’ information should be consent-driven. That is, you should leave it to owners to decide whether they want their neighbours to be able to access their information.
While the concept of consent-based access makes sense, I suspect that the vast majority of owners would opt out and chose to be on the “do not disturb” list. This would leave most information seekers hungry for more information.
I suspect this post won’t be a popular one with everyone. But, the fact is that the regulation, as we read it now, is clear: email addresses are out of bounds. If the province wishes to facilitate email communication between condo owners, it needs to change the existing regulation.
In the meantime, many condo communities have created their own “directory”, allowing neighbours to have the phone and/or email address of others. There is nothing wrong with this, provided that you have first secured the consent of each owner appearing in your directory. In fact, section 13.11(3) of the general regulation specifically contemplates that a condo may disclose the email addresses with the consent of the subject owner. This, in fact, further confirms that, without the consent, the Corporation is not to disclose the email addresses of other owners. [Thanks David for bringing this section to our attention!]
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