We are often asked whether a recording of an Annual General Meeting (“AGM”) constitutes a record of the corporation that must be provided to unit owners, if requested. This question has become more common with the surge in popularity of virtual AGMs, which many service providers will create a recording of.
For background, audio and video recordings of AGMs and other meetings are not specifically enumerated as a record that corporations are required under Ontario’s Condominium Act, 1998 (the “Act”) and very few (if any) corporations specify in their by-laws that such recordings will constitute a record.
However, a document or other piece of information does not need to specifically be listed as a record under the Act in order to constitute a record of a corporation and recordings as records has long been a grey area. This has led to numerous disputes and the Condominium Authority Tribunal of Ontario (“CAT” or the “Tribunal”) has recently released two decisions on this issue that brings some clarity to the issue.
In the first decision, King v. York Region Condominium Corporation No. 692, the CAT found that a recording could constitute a record of a corporation, but on the particular facts of the case the Tribunal did not order the respondent corporation to produce the requested recording.
King was quickly followed by the case of Kent v. Carleton Condominium Corporation No. 268. In Kent, a unit owner requested a video recording of a virtual meeting. The respondent corporation refused to produce the recording, taking the position that it was not a record.
The Tribunal disagreed and found that the video recording of the virtual meeting was a record of the corporation. Kent found that a video recording of a virtual meeting does constitute a record of a corporation in circumstances where “it was created and maintained by the corporation, for a purpose that is related to the ongoing role of managing the corporation.”
While CAT found that the recording was a record in Kent, it did not order the respondent corporation to provide the owner with the recording finding that the request was not made by the owner for a purpose related to their interests as an owner, but rather as ammunition to dispute the contents of minutes of the meeting.
While the decision in Kent does help to clarify the decision in King, whether or not a recording of a meeting constitutes a record of a corporation will depend on the facts of each case. Kent has, however, firmly established that a recording of an AGM (or other meeting of owners) can constitute a record of a corporation.
The reasoning in King can be applied further to other requests for documents or information not specifically listed in the Act or a corporation’s by-laws as a record by considering whether (i) it was created for or by the corporation, and (ii) was the purpose of creating that document or information related to the ongoing management of the corporation?
Following the decision in King, corporations should carefully consider whether they would like their AGM to be recorded (other than by a professional minute-taker for the sole purpose of preparing the minutes).
Many owners would be uncomfortable knowing that any potential misspoken word on a contentious issue would be preserved and available for inspection by other owners in the future. This could stifle discussion or even cause some owners to choose not to speak at all. These factors should be taken into account moving forward in determining whether a corporation would like to create a recording of an AGM or other meeting of owners.
Should you have any questions or concerns, please do not hesitate to reach out to a member of Miller Thomson’s Condominium & Strata group.