With most AGMs having been held virtually over the last 2 years, an inevitable question was bound to surface: Are condo owners entitled to access the video recording of their (virtual) AGM? The Condo Authority Tribunal had to rule on this a couple of days ago. Here are the lessons learned from this case.
So, after a month long blog break, here’s our first August blog post.
Facts of the case
A condo owner (who happened to be a former director and former president of the board) sought to get the following :
- The audio recording of the 2020 and 2021 virtual AGM
- The “original” draft version of the minutes of the 2019 AGM (he was seeking the first draft put together by the minute taker, not the draft circulated by the board to the owners)
The owner wanted these as he disputed the accuracy and integrity of the signed minutes for each of these AGMs. He believed that the recordings and draft would show exactly what was said and would be evidenced of misrepresentations, fabrication, tampering and unauthorized changes to the draft minutes.
The corporation refused to provide these on the basis that these were not “records” of the corporation.
The CAT decided that draft minutes are not records of the corporation and that the recordings in this specific case are not records either. Therefore, owners are not entitled to examine or obtain copies of these.
The CAT has already ruled that draft minutes and the notes taken by the minute-taker are a work product and not a records of the corporation. The actual minutes (not the drafts) will become a record of the corporation once they are approved by the owners at the following owners meeting.
We’ve already blogged about whether owners can access draft minutes.
Recording of virtual meetings
The Tribunal found that, aside from a few date errors in the minutes – which were corrected, the bulk of the dispute turned around wordsmithing, where this owner sought to impose his wording.
Perhaps for this reason, the CAT ruled that in this specific case, the recordings were not records of the corporation. It did so mostly because it viewed the request as falling outside of the purpose of the Condo Act.
Indeed, in this specific case, the recordings were not sought for the legitimate interest of understanding how decisions were made but rather to “prove” discrepancy between the minutes and his own record of what was said, in exact words. In other words, the CAT concluded that the owner’s objective behind this “records” request was to impose his own preferred wording in the minutes over effectively minor details. That, the CAT ruled, should not be the purpose of a records request.
But it’s important to note that the CAT leaves the door open to situations where recordings may form part of the records of the corporation, specifically if the corporation keeps these recordings after the minutes have been drafted (or perhaps after they have been approved by owners). If you keep recordings beyond that point, it can hardly be said that you are keeping them as an aid to the minute-taker…
There are a couple of takeaways here.
First, you need to determine (and advise the owners) of the purpose of the recording. If the recording is made strictly for the purpose of aiding the minute-taker in drafting the minutes, you should state so and you should only keep the recording for the period of time for which it is needed. Keeping the recording beyond that may result in such recording becoming a record of the corporation.
Second, it is worth repeating that minutes are not meant to be a verbatim account, in granular detail, of what was said at meeting. The purpose of minutes is to allow owners to ascertain what and how the business of the corporation is transacted. Owner must be able to see how the corporation’s affairs are controlled, managed and administered.
Owners are not entitled, however, to dictate the specific language or the level of detail they prefer to see in the minutes (subject to a motion by the owners when the minutes are approved at the following AGM).
While there is a high expectation that they will be reasonably accurate, they are not expected to always be absolutely perfect. Minor errors (which should be avoided) do not render the minutes inadequate, nor do they undermine the purpose of minutes.
As is often the case, this dispute over the precise wording of the various AGM minutes was symptomatic of the distrust and lack of confidence between a former board member and the current board. The CAT reminds us here that it does not have jurisdiction over board governance disputes, even if they are disguised as records disputes.
You can read the decision here.