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Condominiums - Corporate Records [s.55]. Pachai v. MTCC No. 850
In Pachai v. MTCC No. 850 (Div Court, 2024) the Divisional Court considered the corporate 'records' provisions [s.55] of the Condominium Act, 1998, here where the appellant sought to resist their disclosure of publically-filed Statements of Claim and Defence on the basis that s.55(4)(b) ['Examination of records - Exception'] prohibited such on the basis of solicitor-client and litigation privilege (the CAT had held that no privilege applied):[1] This is an appeal of a decision of the Condominium Authority Tribunal (the “Tribunal”) regarding an order requiring the Appellant to produce copies of the statement of claim and defences in a Superior Court of Justice action commenced by the Condominium Corporation. Ms. Pachai requested disclosure and production of a number of records from the Condominium Corporation. The Appellant denied her request on the basis of both solicitor-client privilege and litigation privilege and on the exemption regarding disclosure set out in s. 55(4)(b) of the Condominium Act, 1998, SO 1998, c 19.
[2] The Tribunal found that Ms. Pachai was entitled to obtain copies of the statement of claim and statements of defence which have been delivered in the action.
....
[5] In their decision, the Tribunal held that neither litigation privilege nor solicitor-client privilege attached to the records and ordered that the records be produced to Ms. Pachai. The Condominium Corporation has appealed this aspect of the decision to this Court.
....
Did the Tribunal err in finding that the records in issue are not subject to litigation privilege?
[9] The Appellant argues that the Tribunal erred in failing to find that litigation privilege applied to the records in issue. In considering this question, it is helpful to make reference to s. 55(3) to 55(6) of the Condominium Act which provides as follows:Examination of records
55(3) The corporation shall permit an owner, a purchaser or a mortgagee of a unit or an agent of one of them duly authorized in writing, to examine or obtain copies of the records of the corporation in accordance with the regulations, except those records described in subsection (4).
Regulation power
(3.1) Without limiting the generality of subsection (3), a regulation described in that subsection may,
(a) specify processes that a person entitled to examine or obtain copies of records under that subsection must follow to do so;
(b) specify processes that the corporation must follow to respond to requests for records;
(c) specify fees that a corporation may charge for payment by a person who makes a request to the corporation to examine or obtain copies of records under that subsection, where the fees are for costs relating to the examination or copying of the requested records; and
(d) prescribe forms for requests for records or responses to those requests.
Exception
(4) The right to examine or obtain copies of records under subsection (3) does not apply to,
(a) records relating to employees of the corporation, except for contracts of employment between any of the employees and the corporation;
(b) records relating to actual or contemplated litigation, as determined by the regulations, or insurance investigations involving the corporation;
(c) subject to subsection (5), records relating to specific units or owners; or
(d) any prescribed records.
(5) [Omitted.]
Waiver
(6) Despite subsections (3) and (4), a corporation may disclose a record described in clause (4) (b) but shall not disclose,
(a) a record described in clause (4) (a);
(b) subject to subsection (5), a record described in clause (4) (c); or
(c) subject to the regulations, a record described in clause (4) (d). ....
Did the Tribunal err in its analysis of s. 55(4)(b) and (6) of the Condominium Act?
[15] In the present case, the Tribunal notes that s. 55(4)(b) limits the right of a party to obtain records relating to actual or contemplated litigation. However, s. (6) provides that a corporation may disclose a record described in clause (4)(b). In concluding that the records were subject to production, the Tribunal noted that the records which were requested are neither privileged nor confidential. They are court records which, other than those in highly sensitive cases, are public documents, helping to ensure the accountability of the judicial system.
[16] The fact that the documents are not privileged in my view seriously weakens the arguments that the documents should not be disclosed by virtue of s. 55(4)(b). In Fisher v. Metropolitan Toronto Condominium Corp. No. 596, [2004] O.J. No. 5758, the Divisional Court considered the exception contained in s. 55(4)(b) for records relating to actual or pending litigation. The Court concluded in that case that the purpose of s. 55(4)(b) is to maintain litigation privilege or solicitor-client privilege with respect to records of the Condominium Corporation which may relate to litigation or pending litigation between the unit owner and the Corporation. Given the purpose for this section, and the fact that no privilege applied to the records, there is little reason to deviate from the general s. 55(3) provision which notes that a condominium corporation shall permit an owner to obtain copies of records of the corporation. This provides a solid basis for the Tribunal to exercise its discretion to order production of the records under s. 55(6). This is reflected in para. 27 of the Tribunal’s decision where it states,The openness of the Act and the fact the records at issue are public weigh in favour of MTCC 850 exercising its discretion under s. 55(6) to grant access to the records, absent any reason not to. [17] I agree with this analysis of the Tribunal.
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