Are owners entitled to access recordings of online condo meetings?

For the second time, the Condo Tribunal was asked to rule on whether recordings of online owners’ meetings constitute a record of the corporation to which owners are entitled.  This case significantly moved the needle with its conclusion that such recordings are in fact records of the corporation (at least in the circumstances of this case).  But this does not mean that owners are necessarily entitled to obtain these recordings.

Facts of the case

On January 17, 2022, CCC 268 hosted an owner-requisitioned meeting for the purpose of removing the board of directors. The meeting was held online by way of Zoom video conferencing. It was recorded to assist in creating minutes of the meeting.

After the meeting, an owner requested the recording. The condo corporation refused to provide it based on the “widely circulated advice” (on blogs) that such recordings are not records of the corporation. The owner took the matter to the Condo Tribunal.

Questions before the CAT

The Condo Tribunal was asked to rule on two questions:

1. Are recordings of online owners meetings a record of the corporation?
2. If so, are owners entitled to get a copy of these recordings?

Online recordings not listed in regulations

Recordings of online meetings are not expressly listed in the regulations as records that a condo corporation is required to keep. However, this does not meant that these recordings are not, in fact, records of the corporation.  Indeed, section 55 of the Condo Act and section 13.1 of the general regulation do not provide an exhaustive list of what constitutes records of the corporation.  These sections only sets out a minimum standard of adequate record keeping.

Indeed, section 55 provides that the corporation “shall keep adequate records, including the following records”.  The word “including” clearly provides that the following list is not exhaustive. There may be more records that are not listed in this section.

Intent and purpose of the recording

Perhaps the strongest argument presented by the corporation was that the recording was never intended to be a record of the corporation. The owners were advised that the meeting was recorded but for minute-taking purposes only. They were told that this recording would not form part of the records of the corporation.

The Condo Tribunal did not accept this argument and ruled that a condo corporation could not “opt out” of the requirement to retain a record by simply announcing the purpose of the recording and the fact that it would not be a record of the corporation.

The corporation also argued that this recording was comparable to the personal notes taken by a minute-taker, which were found not to be records of the corporation but rather personal notes to assist in the drafting of minutes.

The Condo Tribunal also rejected this argument indicating that the minute-taker’s notes constituted their own refection on the meeting for the minute-taker’s personal use in preparing minutes. By contrast, the electronic recording of a meeting was not a working draft or notes based on personal impression.

The Condo Tribunal concluded that it was a record of the corporation, created and maintained by the corporation for its purposes:

[15 ]   … Based on the facts and arguments before me and the circumstances of this case, I conclude that the recording is a record of the corporation because it was created and maintained by the corporation, for a purpose that is related to the ongoing role of managing the corporation. While there is no requirement to create the recording, the corporation’s choice to create and retain the recording has the effect of making it a record that is subject to the right of owners to access and examine the records…

But this is not the end of the debate.

Are owners entitled to these recordings?

Having concluded that the recording of the meeting was a record of the corporation, the next (and ultimate) question was whether owners are entitled to access this recording.

As it did in a prior case, the Condo Tribunal concluded that this owner was not entitled to access the recording as the request was not found to be “related to the requester’s interest as an owner”.

Indeed, in this case, the owner based his request on his view that it was important for owners who had not attended the meeting to hear the explanation provided by the directors, in particular since such explanation did not appear in the draft minutes. Stated otherwise, this owner was seeking the recording to criticise the accuracy and completeness of the draft meeting minutes and to “rewrite them” to his liking. This owner, the tribunal concluded, was “promoting his personal interest in seeing his own preferred wording” of the minutes.

The Condo Tribunal reminded the parties that the Condo Act does not impose a standard of perfection in minute-taking.  Minutes are not required to be a verbatim account of the meeting.  If an owner feels the draft minutes do not accurately reflect what was said at the meeting, the rest of the owners in attendance will get a chance to review, discuss and vote on the accuracy of the minutes at the following meeting of owners.

Ultimately, the Condo Tribunal concluded:

[21] I therefore conclude that the Applicant has not met the test that the request is “solely related to that person’s interests as an owner […]  having regard to the purposes of the Act.” This request extends beyond a legitimate interest in the content of the record, and is focused on rewriting minutes to meet the Applicant’s expectations. Therefore, I find that the Applicant is not entitled to the record.

You can read the decision here.

Commentary

It is important to note a couple of points on which the decision rests:

• The recording appears to have been made by the corporation;

• The decision is based on “facts and arguments before [the tribunal] and the circumstances of this case”.  Which means it may not necessarily apply to all cases where an owner seeks access to meeting recordings;

• The owner sought the recording to criticise the draft minutes and to have them rewritten to his liking – which the Tribunal stated was not in line with the purpose of the Act.

While I’m not entirely surprised by this decision (such conclusion was bound to be reached eventually), I’m not sure I entirely agree with it for two very different (and seemingly conflicting) reasons.

Reasons not to include recordings in records

In my view, the purpose and intent behind the corporation’s recording should be granted considerable weight. If the recording is temporary in nature and made for the sole purpose of aiding in the drafting of minutes, then the recording should not be considered a record of the corporation.  There is no difference, in my view, between a Zoom recording of a meeting and the audio recording that minute-takers used to make at in-person meetings.

Moreover, including recordings in the corporation’s record may have a chilling effect on both corporations (who will opt not to record the owners meeting, which may have an impact on the accuracy of the minutes) and on owners who may not feel comfortable participating in a meeting (if they know the recording will live on forever).  Knowing that the recording will be accessible to all may stiffle the debate. I already heard from various stakeholders in the industry that they are now being instructed to disable the Zoom recording function to avoid creating a record.

There are also, in my view, privacy issues behind making a recording widely accessible.  Written minutes are vetted and focus on the true business conducted at a metting. A recording of sound and image captures other superfluous information that certain individuals may not feel comfortable having broadcasted and shared around.

Finally, I’m not sure I agree with the concept of having different record keeping obligations depending on whether the meeting is held in person or online.

Reasons to include recordings in records

On the flip side, I’m puzzled by the conclusion that the recording is a record but that it is not accessible on the basis that those seeking the recording are doing so to challenge the accuracy of the minutes, which the Tribunal has concluded (twice) was not in line with the “person’s interest as an owner, having regard to the purpose of the Act”.

Let’s pick a lane, here. Recordings are either a record or they are not. If they are, access should be given to them. I fear that the Tribunal is drawing an arbitrary and very subjective line. It ignores the intent of the corporation in making the recording but reads into the intent of the owner seeking access to it.

I also wonder how it is that seeking to compare draft minutes to an actual recording is not related to a person’s interest as an owner and I wonder what other reasons would owners ever have to access a recording. I also fear that those requesting records will simply find more creative ways of drafting their request to make it seemingly fit within the “purpose of the act”.

Lessons learned

• Corporations should seriously re-consider whether they wish to record their online meetings.  Certainly, they should be conscious that the decision to do so may result in the creation of a record;

• Those recording their meetings should continue to clearly state the purpose of the recording and should stick to that purpose (ie, they should not keep the recording beyond its useful stated purpose);

• Corporation should consider leaving the hosting and recording to third parties to avoid the risk of the recording being seen as having been made by the corporation;

• If a recording is made by a third party, it should not be provided to the corporation as this, in my view, further supports the argument that it is a record of the corporation.