Condowise Learning - Caselaw Summary

Chai v. Toronto Standard Condominium Corporation No. 2431, 2022 ONCAT 142

This was the third case between the parties in which TSCC 2431 had failed to exercise care and diligence in its handling of its records. The Tribunal signalled that it will not tolerate a corporation repeatedly disregarding its responsibilities – it found that an elevated penalty of $750 (from $200) was appropriate in the circumstances.

The Tribunal made the following findings and with respect to the various records at issue:

Financial Statements

• The Tribunal affirmed Mellon v. Halton Condominium Corporation No. 70, 2019 ONCAT 2, in which the “most recent approved financial statements” refers to “the most recent audited financial statements approved by the board for delivery to an annual general meeting of the condominium corporation”.
• It is not a prerequisite for the financial records to be provided as part of the Annual General Meeting (“AGM”) package to attain that status.

Periodic Information Certificates (“PICs”)

• Section 13.4 of O. Reg. 48/01 requires PICs to be provided within 7 days of receiving confirmation to proceed with fulfilling the request.
• Requests for PICs do not include Information Certificate Updates (“ICUs”). Additionally, ICUs are not core records.
• Section 11.1(6) of O. Reg. 48/01 requires that PICs be accurate as of the last day of the quarter to which they relate, and not the date of issuance.
• Section 11.10 of O. Reg 48/01 governs the disclosure obligations for persons already elected or appointed to the board, whereas candidates seeking election to the board are governed by s. 11.6 of O. Reg. 48/01. New candidates’ forms must be included in AGM packages but not in a PIC.
• The box indicating that the director has not completed their mandatory training is only to be checked once the timeline for completion has elapsed; a director must complete their training within six months of their election or appointment if they have not already done so in the preceding seven years.
• O. Reg. 48/01 requires PICs to indicate whether it is projected that there will be a surplus or deficit at the year-end. It does not require PICs to indicate whether there is currently a surplus or deficit.

Record of Notices of Leased Units

• Section 83 of the Condominium Act (the “Act”) requires an adequate record of notices of leased units to include: (i) a list of each unit for which one or more s. 83 notices has ever been received; and (ii) for each unit in that list, an indication of the type of notice received and the date the notice was received.

Record of Owners & Mortgagees

• Records of owners and mortgagees are to include both voting and non-voting units.
• Each listing must include the owner’s name, an identification of the unit, and a statement of the method of electronic communication that has been agreed to.
• Address for service is only required if it is different from their unit address.

Board Meeting Minutes

• A board of a corporation shall not transact business of the corporation except at a meeting of directors at which quorum of the board is present. However, it is not within the jurisdiction of the Tribunal to determine whether it is appropriate for a board to informally discuss issues that are subsequently ratified at a formal meeting.
• Separating the minutes into regular minutes and “in camera” minutes was considered to not be the best practice. However, it does not breach the Act so long as in camera minutes are provided when requested. Any information that is redacted must be supported by the respective statutory exemption.
• Where there is a notation that the minutes were amended, the Act does not require it to identify the specific amendments.

Redactions

• References to individual units in records must be redacted as per s. 55(4)(c) of the Act.
• Corporations must not redact minutes in such a way that it does not adequately protect the information that is supposed to be redacted (e.g. where the redacted elements can be copied and pasted to reveal the information).
• Redactions must be accompanied by a separate document setting out the reason for each individual redaction with reference to the specific exemption under the Act, regulations, or category of legal privilege.
• Excessive redactions amount to refusing to provide the records without reasonable excuse.

Read full decision here.