As most of our readers know, AGM minutes are submitted to owners for approval at the following AGM. A question that often comes up is whether owners can access draft minutes before then, for instance, in the context of a records request. This request may be accompanied by a criticism over how long it takes for AGM minutes to be seen by owners.
This blog post sheds some light on whether owners are entitled to access draft AGM minutes and, if so, when.
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Minutes are records of the corporation
Corporations have a duty to take and keep minutes of both board meetings and owners meetings. These minutes then form part of the records of the corporation.
Under its retention obligations, corporations must retain minutes “for all times”. Having said that, minutes of meetings having been held within the 12 months preceding a records request are core records. Minutes which are older than 12 months are non-core records.
Minutes are “drafts” until approved
As minutes are taken during or after a meeting, they are in a draft form until they are approved at the following meeting. Indeed, boards approve board minutes (usually) at the following board meeting; and owners approve AGM minutes at the following owners meeting, usually a year later.
Are drafts records?
The question then becomes: are draft minutes “records of the corporation” and are owners entitled to access these drafts?
The short answer is: “No”. Draft minutes are not records of the corporation and, as such, owners don’t have a right to access them. Minutes only become records of the corporation once they are approved.
The Condo Authority Tribunal has had to rule on this on a couple of occasions, more recently in the Gagnon v. CCC 331 case.
In this case, an owner requested minutes of all meetings having been held in the prior 12 months. This, she claimed, would include minutes of the prior AGM (which had not yet been approved). She acknowledged that she did eventually receive draft minutes of the AGM, as part of the AGM package for the following AGM but she felt that these should have been disclosed much earlier (namely within 30 days of her records request).
Stated otherwise, she wanted access to the draft AGM minutes when she requested them, not some six months later, just before the following AGM.
On this, the CAT is clear. Until they are approved by owners at the following meeting, draft minutes of meetings do not form part of the corporation’s records. As such, condo corporations need not disclose them to owners requesting them. Minutes only form part of the records once they are approved by the owners (or by the board if we are talking about minutes of board meetings).
When you think about it, this makes sense. Indeed, until the minutes are approved (either at the following AGM or at the next board meeting), there is no way of knowing if the draft will be approved or what changes will be implemented to them prior to their approval. It is only once approved that the minutes form part of the records of the corporation (and are accessible to owners requesting them).
When should draft minutes be provided to owners?
A draft of the AGM minutes is usually provided as part of the AGM package, the following year. Some owners feel that this is much too late and that they may not remember what was discuss the following year. Still, the fact of the matter is that the Condo Act does not require minutes to be provided any earlier and it is quite standard to include draft minutes in the AGM package for the following year. This process is routinely followed both in CondoLand and with other not for profit corporations.
In another case (the Russell v. YCC 50), an owner argued that providing minutes a year later was an “unnecessary delay”. The Condo Authority Tribunal did not agree with this and, again, reiterated that “given that that only the owners can approve the minutes of the prior meeting, it is hard to see how draft [owners meeting minutes] can be approved earlier”.
Some corporations have opted to circulate an early version of the draft – even if the minutes are only approved the following year. There is nothing wrong with this, but it is not required to do so. One of the possible benefit of pre-circulating the minutes ahead of time is that typographical errors or non-contentious ones can be corrected in advance before a final draft is formally circulated the following year. After all, no great secret is being disclosed by circulating draft minutes to those owners who were present (and who will see a draft next year in any event).
A possible downside is confusion that may exist with various different drafts being circulated (that can likely be addressed by clearly marking the documents as drafts and clearly dating the drafts). Another downside may be the risk of being dragged into a debate over the accuracy of the minutes with only one owner being part of the conversation. This could be addressed by making it clear that proposed corrections are being received for the board’s consideration but that a single final draft will be circulated to the ownership as part of the AGM package.
There is no magic solution and it is also perfectly acceptable to simply circulate draft minutes the following year.
Updated on May 17, at 9pm.