26/05/2020 – Jurisdiction Ontario
Part 70 published on 01/06/2020
Tribunal determines rights of condominium corporation to seek recovery of costs for redacting records
The Tribunal held that the costs for redacting non-core records can be claimed (by the condominium corporation) where reasonable. However, the Tribunal said that some records do not require redacting. The Tribunal also said that redacting by the corporation’s legal counsel is not necessary in many cases. The Tribunal said:
Based on the foregoing considerations, I find that although a condominium board does have a general duty under the Act and the Regulation to protect certain categories of record or information from being disclosed in response to a request for records under subsection 55(3) of the Act, there is no requirement to submit every record requested to formal review for redaction in order to fulfill that duty.
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It is trite law that a condominium board has broad discretion with respect to its management of the affairs of the corporation. That discretion includes the right to institute a practice of always referring all substantial requests for records to legal counsel for response and review of the records requested. However, the question before me is not whether such a practice is within the range of things that a condominium board might validly or even reasonably decide to do, but whether it is reasonable that the cost of so doing is imposed upon the requester of records. Based on some of the reasons already set out above in this case, I cannot find that it is reasonable to impose such costs on the requester of records.
To be clear, this is not a determination that the cost of redaction should never be imposed upon a requester of records; that would be an unreasonable and erroneous conclusion. It is also not reasonable for condominium boards to make decisions based solely on past practice or policy, without any consideration of relevant circumstances. This principle applies where the decision to review records for redaction is made just as a matter of course, without regard to such factors as the type or likely content of the records in question. It also applies where the review for redaction is required to be performed by legal counsel, again regardless of whether the records in question really require that level of expertise in order to adequately discharge the legitimate duties or concerns the board might have in relation to the request in question. If such decisions are not reasonable, then imposing the fees for them on the requester of records also cannot be viewed as reasonable.
Gendreau v. Toronto Standard Condominium Corporation No. 1438