CAT Decision Deals With Records Relating to Contemplated Litigation

In the case of Zamfir v. YCC 238, an owner submitted a request to see Board minutes.

When the minutes were prepared, the condominium corporation was considering a Court proceeding against the owner. Although owners are generally not entitled, under Section 55 of the Condominium Act, to see records relating to specific owners or units, this exception does not apply to records relating to the owner making the request.  However, there is an additional exception (contained in Section 55 (4) (b) of the Act) that applies to records relating to actual or contemplated litigation.

The CAT was therefore required to consider the following question: 

• How much of the information (contained in the minutes) relating to the contemplated Court proceeding should be redacted from the minutes that were to be provided to the owner?

The owner argued that only the actual communications from the corporation’s legal counsel (about the contemplated litigation) should be redacted – not other details such as communications between Board members discussing the contemplated litigation.  

Ultimately, the CAT held that all of the details about the contemplated litigation should be redacted (and therefore should not be seen by the owner).   

First and foremost, the CAT found that any communications protected by solicitor-client privilege should not be disclosed to the owner.  The CAT said:

…any direct communication between the lawyer and the board (representing, in this case the client) would be protected from disclosure under solicitor client privilege.

But then the CAT went on to state as follows:

Subsection 55(4)(b) does provide a broader exception to the right of examination than solicitor-client privilege. It extends the exception to records “relating” to actual or contemplated litigation. To be exempt from examination under s. 55(4)(b) records need not contain direct communications between counsel and client, they need only contain information that relates to actual or contemplated litigation.

In summary, all information contained in the minutes respecting actual or contemplated litigation should be redacted when an owner makes a request to see minutes.

The CAT also pointed out that, under Section 13.8 of Regulation 48/01, the condominium corporation must provide statements setting out the board’s reason for any redaction and indicating on which provision of Section 55 of the Act or the Regulation the board bases its reason.

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