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Referencing emails doesn’t make them part of the record: Condominium Authority Tribunal (CAT)

2019-10-28

Warren Kleiner Head Shot

Emails between condo board members are not part of the official record, but directors still have to be very careful about what they write in these online messages, says Toronto condominium lawyer Warren Kleiner.

Kleiner, a partner with Shibley Righton LLP, cites a recent Condominium Authority Tribunal (CAT) decision, where a unit owner wanted to see online messages between board members about the approval of a gas contract after the minutes of an official board meeting stated it “has already been approved by the board via email.”

In its defence, the board stated the “mere mention of emails within the minutes does not make these emails a record of the corporation,” tribunal documents state, and an “agreement to agree” in electronic correspondence is not important since formal approval of the gas contract renewal was given at a regular board meeting.

The CAT sided with the board, ruling the “emails, whether they existed or not, are not records that the [unit owner] is entitled to under the Act.”

“This is a very interesting case, as many people might have thought that if you refer to emails between board members in the minutes, a board would be required to produce those messages,” Kleiner says.

He tells AdvocateDaily.com that s. 55 of the Condominium Act states that “The corporation shall keep adequate records, including the following records...” before going on to list 12 examples, such as financial records and a minute book of formal board meetings.

“It’s not meant to be an exhaustive list, but just examples of records that have to be kept by condo boards,” Kleiner says. “There could be other things that are considered records.”

He says the tribunal’s decision makes sense, considering that condo directors often exchange emails before meetings on various subjects, which people would generally not expect to form part of the corporation’s records.

Though these types of emails have now been deemed to not be part of the official record for condo boards by the CAT, Kleiner advises directors to be circumspect about what they write in their private messages.

“There could be circumstances where those informal emails between directors are forwarded to another person,” he says. “Some board members may say things that could be perceived as an insult towards a unit owner, or they may express views they would not want to be made public.”

Once they are circulated, these emails could also be used in various legal proceedings that may arise in the future, Kleiner says.

“It’s very important to understand that once someone pushes the send button, it’s almost impossible to control where that information goes, which is why board members should exercise extreme caution and prudence with what they put in these messages.”

He says another interesting aspect to this decision is that the condo board was ordered to pay the unit owner $200 in costs, even though the owner was unsuccessful in his quest to have the board produce the emails in question.

“There was confusion about what was in the minutes, and the board was a little late in responding to the owner’s concerns in this regard,” Kleiner says. “So even though the tribunal didn’t award a penalty, it ended up awarding costs to the owner.”

 

 

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2019-10-28