06/04/2022 – Jurisdiction Ontario
Part 78 published on 01/06/2022
Owner entitled to see invoices for legal services provided to condominium corporation, but with significant redacting
The owner requested copies of the condominium corporation’s invoices for legal services. The condominium corporation argued that the owner was not entitled to see the invoices because they are protected by solicitor-client privilege.
The Tribunal confirmed that condominium records may be protected by “recognized categories of privilege” (including solicitor-client privilege), in addition to the specific exceptions set out in Section 55 (4) of the Condominium Act.
The Tribunal said:
Solicitor-client privilege presumptively protects condominium corporations from being required to provide owners with access to their legal accounts and communications. The “open book” principle does not, on its own, constitute sufficient grounds for rebutting the presumption that the records are subject to solicitor-client privilege.
The Tribunal also held that the privilege had not been waived in this case. The Tribunal said:
…a general statement that the corporation has asked its counsel to respond to emails from owners is not specific enough to constitute a waiver of solicitor-client privilege for the related invoices.
However, the Tribunal went on to say that protection of solicitor-client privilege must be balanced against the transparency objectives of the Condominium Act. The Tribunal said:
While I recognize the importance of solicitor-client privilege, I also recognize the important accountability and transparency objectives of the Act. The rights and interests of condominium corporations and owners must be balanced in a way that adequately protects both. In this circumstance, I conclude that the presumption of privilege may be rebutted if there is no reasonable possibility that disclosure of the amount of the fees paid will directly or indirectly reveal any communication protected by the privilege (e.g., the nature of any services provided, or the content of any advice given). Accordingly, I find that the invoices ought to be provided, redacted as necessary to protect information that is appropriately the subject of privilege.
The Tribunal therefore held that the condominium corporation was obligated to provide the invoices (for legal services) to the owner, “but that they are entitled to redact description of number of hours billed, the hourly rates, the services provided, the names of specific counsel who provided services, and the dates of the invoices. The invoices must show the total amount for each.”
The Tribunal also confirmed that the condominium corporation was “entitled to charge a fee for the actual labour and delivery costs it incurs for providing these records”.