Records requests and contemplated litigation

January 27, 2022 | Justin McLarty

The Condominium Authority Tribunal’s (“CAT”) recent decision in Zamfir v. York Condominium Corporation No. 238, 2021 ONCAT 118 (“Zamfir”) brings some much needed clarity on the extent to which a condominium corporation can rely on the exception to produce records under section 55(4)(b) of the Condominium Act, 1998 (the “Act”). It also helps to clarify the interplay between section 55(4)(b) and (c) and section 55(5) of the Act.

Section 55(4)(b) provides that the right of an owner to examine records does not extend to records relating to “actual or contemplated litigation”. In the case of Zamfir, the corporation was considering commencing legal action against the owner who brought the records request case before the CAT. Section 55(4)(c) provides that an owner is not entitled to see records relating to other specific owners and units.

The owner had requested minutes of board meetings that contained discussions of the potential litigation against the owner. While it appears as though the corporation did not respond to the request until the CAT hearing, the corporation took the position that any discussion of the potential litigation should be redacted from the minutes.

The unit owner took the position that he should be allowed to review minutes that related to him and to his unit, regardless of whether it included discussion of the potential litigation. The owner’s position was based on sections 55(5)(a) and (b) of the Act, which provide that:

(5) Clause (4) (c) does not prevent,

(a)  an owner, a purchaser or a mortgagee of a unit or an agent of one of them duly authorized in writing from examining or obtaining copies of records under subsection (3) if the records relate to the unit of the owner, the unit being purchased or the unit that is subject to the mortgage, as the case may be;

(b)  an owner of a unit or an agent of the owner duly authorized in writing from examining or obtaining copies of records under subsection (3) if the records relate to the owner;

The owner’s argument was flawed from the beginning, given that the exception in section 55(5) to review records that would otherwise not be available only applies to records relating to specific units and owners (and not actual or contemplated litigation). With that said, the decision in Zamfir is still helpful to set the boundaries for redaction under section 55(4)(b).

The CAT followed reasoning from prior cases that the exception against providing records relating to actual or contemplated litigation is broader than typical solicitor-client privilege. The owner had argued that section 55(4)(b) only applied to actual communications between the corporation and the corporation’s legal counsel, and not to internal board discussions of that litigation without counsel present.

The CAT disagreed and clearly held that in order to be protected under section 55(4)(b) the records (1) did not need to include communication between the corporation’s board and the corporation’s legal counsel and (2) that to be protected under section 55(4)(b) the record only needed to contain information that relates to actual or contemplated litigation.

Zamfir is a clear and concise case that should aid corporations in determining what records must be provided to an owner that the corporation is either engaged in litigation with or may be involved in litigation with. The broad scope of section 55(4)(b)’s reference to “contemplated litigation” was upheld, and any references or discussion of actual or contemplated litigation should be redacted from records provided to unit owners.

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