CAT Says That a Recording of a Meeting Can Be a Record of the Corporation
In the case of Kent v CCC 268, a special meeting of the owners was held on the Zoom video conferencing platform. The meeting was recorded to assist in creating minutes of the meeting. An owner requested a copy of the recording.
The Tribunal began by noting that a condominium’s records can include records that are not specifically listed in the Condominium Act or regulations. [Recordings of meetings are not specifically listed in the Condominium Act or regulations.] The Tribunal then concluded that the recording of the meeting was a record of the corporation (at least in this case) “because it was created and maintained by the corporation, for a purpose that is related to the ongoing role of managing the corporation”. The Tribunal distinguished the recording from minute-takers’ notes (which were found not to be records of a corporation, in other case). The Tribunal said:
The difference that the (condominium corporation) disregards, however, is that the minute-taker’s notes in Stewart were made by the minute-taker and constituted their own reflections on the meeting for their personal use in preparing the minutes. By contrast, in this case, the condominium created the recording. It is not a working draft, or personal impressions – it is a record created and maintained by the Respondent for its purposes.
Even though the Tribunal determined that the recording was a record of the corporation (in this case), the Tribunal nevertheless held that the owner was not entitled to the recording because the owner’s request was made for a purpose that was not “solely related to that person’s interests as an owner, a purchaser or a mortgagee of a unit, as the case may be, having regard to the purposes of the Act.”
The Tribunal said:
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.
The bottom line is as follows: A recording of a meeting might, in some cases, constitute a record of the corporation. This will depend upon the precise circumstances, particularly whether or not the recording is created for possible use by the corporation.
In light of this decision, condominium corporations should very carefully consider whether or not any such recording should be prepared (on behalf of the corporation) in each case. We recommend that the corporation consider: Is it really necessary to create a recording (for this particular meeting)? If a recording is created, the result is that one or more owners (or perhaps even future owners!) may ask for the recording and may or may not have reasons that are “solely related to that person’s interests as an owner, a purchaser or a mortgagee of a unit, as the case may be, having regard to the purposes of the Act.” One way to avoid these issues is just not to have such a recording.
I hasten to add that many owners attending a meeting may feel uncomfortable speaking or even asking questions if they know that their precise words, appearance and delivery may be subject to careful review and scrutiny by other owners or future owners. They might also be very nervous about raising confidential or sensitive matters if they feel that another owner (even someone not in attendance at the meeting) might one day have access to those precise comments. In addition, a potentially permanent recording – something that might be available for many years into the future – has a very different quality and potential to cause harm (compared to a carefully-crafted meeting minute). In almost all cases, it seems to me that a properly prepared meeting minute, which is both thorough and concise (but does not have to be a verbatim record of the meeting), will achieve all of the corporation’s needs.
Another question is: If the corporation decides to create a recording of a meeting (as a record of the corporation), how long does the recording have to be kept?
In my view, Section 13.1 (2) 23 of Regulation 48/01 likely applies to such recordings. That section reads as follows:
For a record in respect of which a retention period is not specified in subsection 55 (2) of the Act or this subsection, the period of time that the board determines is necessary for the corporation to perform its objects and duties or to exercise its powers.
So, I believe that the Board could decide how long such a recording is to be kept (and for instance might decide that the recording should be destroyed once the meeting minutes have been finalized). However, the corporation could nevertheless be required to delay the destruction of the record in the event of contemplated or actual litigation or a relevant insurance claim or where there is an outstanding request for the record (before the record is destroyed).
Finally, as noted in our previous blog on this issue, we continue to feel that the minute-taker can still be permitted to make their own recording (to assist the minute-taker in preparing the minutes) – either using their own personal device or directly through the third party provider (ex. GetQuorum), but this should be on the strict understanding that any such recording will belong exclusively to the minute-taker, will never be received by the corporation, and will be destroyed once the minutes are finalized. In those circumstances, it’s our view that the minute-taker’s recording should not become a record of the corporation.
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