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Can owners use records requests to go on “fishing expeditions”

Owners are entitled to access records of the corporation. After all, these records “belong” to the owners and the affairs of the corporation are an “open book” to unit owners.  But what can condos do when an owner’s record request goes too far? Are owners entitled to go on fishing expeditions?

Facts

In this case, the owner sought the following records:

  • specific core records
  • “all of the non-core records from 2000 to 2023”.

Of interest, this corporation was only created in … 2014.  Clearly, there would be no records (core or non-core) for the first 14 years of the period covered by the records request.

The owner received the core-records (even if the financial statements were provided after the 30-day period, as soon as they were available to the corporation).  The remaining issue had to do with the non-core records. The corporation asserted that the request for non-core records was too wide and unreasonable. It was, they argued, a “fishing expedition”.

Fishing expeditions

The CAT has already recognized that some records requests amount to “fishing expeditions”:

The term “fishing expedition” is used in law to describe a search or investigation, including demands for records or information, undertaken for the purpose of discovering facts that might be disparaging to the other party or form the basis for some legal claim against them, that the seeker merely hopes or imagines exist. Most cases where the term is used appropriately involve a person casting a wide net, as it were – such as requesting records that cover a broad period of time and/or wide range of topicsin the hopes of acquiring some fact or detail that could satisfy what is essentially an unfocussed vindictiveness or dislike for the other party.

The determination of whether a records request constitutes a fishing expedition will turn on:

  • the scope of the records being sought
    • Are they asking for everything under the sun, covering a wide range of topics or are they focused on a specific issue?
  • The period covered by the request
    • Are they seeking documents over an unduly lengthy period of time?
  • The intent behind the records request
    • Are they on an expedition seeking to discover facts to disparage the other or to fuel an unfocused vindictiveness?

In another case, the CAT ruled that an owner seeking 6 years worth of records with the explicit intent of determining whether the board of directors was complying with the Condo Act was overly broad, lacked specificity, was focused on finding images wrong-doing, and met the general definition of a “fishing expedition”.

In the present case, the CAT concluded that the owner was conducting a “fishing expedition” by requesting “all non-core records” rather than specific records, within a limited time period or connected to a specific issue.

Caution for condo corporations

We must caution our readers though. You should consult with your favourite condo lawyer before you conclude that an owner is on fishing expedition as the consequence of not disclosing records may be very significant.  In most cases, it is best to assume good intend and to disclose records (to which an owner is entitled) rather than risk being unsuccessful at the CAT.

Caution for owners

Onwers are entitled to access records of the corporation but they are not entitled to use this process to fuel fishing expeditions.  If you are going to make a records request, you may want to narrow and focus your request to what you actually need. In this case, the owner was to pay $4,000 in costs.

You can read this decision here.

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