Who Pays the Cost to Redact Records When Owners Request Documents?

In the recent decision of Patricia Gendreau v Toronto Standard Condominium Corporation No. 1438, the Condominium Authority Tribunal (CAT) has provided further comments on a condominium’s document disclosure obligations.

In this case, the owner requested both core and non-core records under section 55(3) of the Condominium Act, 1998. The Corporation delivered the core records. But then informed the owner that the non-core records would only be provided after they had been reviewed and redacted by the Corporation’s lawyer, the costs of which the owner would have to pay.

The owner challenged the Corporation’s decision on the basis that the review and redaction was unnecessary, and accordingly any associated costs were unreasonable.

For various reasons, the Corporation argued that it had a statutory and implied duty to review and redact all the records. In this case, the Corporation wanted its lawyers to complete the review (at the owner’s cost) given that the Corporation was concerned the owner planned to use the records to support future litigation. Although we note that the CAT concluded there was no evidence to suggest this owner was contemplating litigation.

What is a Condominium’s Duty to Review and Redact Records?

Ultimately, the CAT confirmed that the Personal Information Protection and Electronic Documents Act (PIPEDA) (which is designed to protect personal information from disclosure in private organizations) does not provide a basis for condominiums to redact personal information from records requested under section 55(3) of the Condominium Act.

However, a similar requirement designed to protect certain information, including personal information, exists under section 55(4) and 55(6) of the Condominium Act. The CAT confirmed that these two sections work together to prevent the disclosure of certain information in the following ways:

• Records relating to the Corporation’s employees cannot be disclosed, except for employment contracts which can be disclosed (and which typically do not contain personal information about the employee);

• Records relating to actual, or contemplated, litigation or insurance investigations cannot be disclosed unless the board chooses to waive this right, in which case the records can be disclosed;

• Records relating to unit owners, cannot be disclosed unless the unit owner information is redacted (for example redacting unit owner information from board meeting minutes where the minutes must be disclosed); and

• The prescribed records set out at section 13.11(2) of the General Regulation to the Condominium Act cannot be disclosed, except in the circumstances listed in that section.

While the Condominium Act creates this duty to protect against the disclosure of certain information, the CAT confirmed that this does not mean every non-core document must be reviewed for possible redaction in order to meet this duty. Boards must use their judgement to assess whether the contents of a record will require it to be reviewed for redaction. And in some cases, the nature of the document will likely confirm that no redaction is required. But this will depend on the specific circumstances of each record request. For example, in this case, the CAT found that there was no reason to require a review, particularly a legal review charged back to the owner, of the following documents:

• Past Budgets (which had already been disclosed at AGMs);

• Contracts between the condominium and certain contractors (i.e. cleaners, property manager, security service, and contracts related to software packages used by the condominium);

• Employee’s contracts; and

• The condominium’s insurance policies.

Having concluded that the nature of the documents confirmed they did not require redaction, the CAT went on to conclude that it would not be reasonable to impose a cost to have the Corporation’s lawyers review the documents. That said, the CAT was careful to reiterate that it is certainly within the Board’s discretion to refer any record requests to its lawyers for review and response – this is well within the Board’s discretion.

However, the cost to do so can only be charged back to the owner requesting the records in certain circumstances. If there is no clear reason to justify a lawyer’s review under section 55(4) of the Condominium Act, or the nature and content of the document suggests it does not require redaction, then the condominium is not likely in a position to charge back the cost of the legal review to process the record request.

The bottom line is that Boards are being faced with increasing numbers of record requests. And it is certainly within the Board’s discretion to refer those requests to legal counsel for review. However, the cost to do so can only likely be charged back to the owner where it is obvious the documents require redaction because of the nature of their content and because they fall under one of the protected categories under section 55(4) of the Condominium Act. Otherwise, the cost to do so is likely one the Corporation must absorb as a cost of doing business.