04/08/2024 – Jurisdiction Ontario
Part 87 published on 01/09/2024
Appeal Dismissed. Owner was entitled to see Statement of Claim and Statements of Defence in Superior Court action started by condominium corporation.
The Condominium Authority Tribunal held that the owner was entitled to receive copies of the Statement of Claim and Statements of Defence in a Superior Court action that had been started by the condominium corporation. The Superior Court action was a claim asserted by the condominium corporation against the City of Toronto, a hotel operator and non-profit shelter operator to recover extra security costs allegedly incurred by the condominium corporation due to a shelter for homeless people in the hotel next door to the condominium during the COVID-19 pandemic.
The Tribunal found that the Statement of Claim and Statements of Defence were public documents, not protected by solicitor-client privilege or litigation privilege and also not falling within the exceptions (for disclosure) listed in Section 55 (4) of the Condominium Act.
The condominium corporation appealed. The appeal was dismissed by the Divisional Court. The Court said:
Thus, litigation privilege is designed to create a zone of privacy around documents held by a party in litigation. It would not extend to pleadings which are exchanged in an action. These are public documents. In this particular case, the statements of defence are not prepared by the Condominium Corporation but are simply received from the defendants in the action. A statement of claim is not meant to be a document held in private. In my view, exchanged pleadings do not attract any litigation privilege as a result.
…
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.
I agree with this analysis of the Tribunal.Pachai v. MTCC 850 – Ontario Divisional Court (Appeal)