AGM Recordings Are Records
By: Patrick Nelson
With the move to online hosting for most owner’s meetings, questions have emerged as to whether the recordings of those meetings constitute records which owners are entitled to review. Two recent case before the Condominium Authority Tribunal (“CAT”) shed light on this subject.
In the cases of King v YRCC 692 and Kent v CCC 268, the CAT considered owners’ requests for, among other things, audio recordings of annual general meetings. The corporations had taken the position that the recordings were not records and refused to provide them.
Despite the condominium industry moving to online meetings for the past three years (where most providers record the meeting automatically over cloud platforms like Zoom), the question of whether an AGM recording is a legal “record” under the Condominium Act, 1998 had not been considered by the CAT until these cases. The prevailing view in the industry was that recordings were like draft minutes or the notes of the minute-taker, which were documents used to create records (i.e., the minutes of the meeting) but were not official records themselves. If recordings were legally records, however, corporations would be required to store them and allow owners to review them upon request.
In King, the Tribunal declined to answer the question directly. Instead, it found that, in the circumstances of that case, the corporation did not have to provide the AGM recordings. The owner wanted the recordings for an improper purpose – namely, to “prove” a mistake in the minutes and force the corporation to adopt his own preferred wording for the minutes – and the corporation was not required to provide documents when they are requested for an improper purpose.
The facts in Kent were similar to King. In that case, the owner had also argued that the minutes did not accurately record what had been said at the meeting, and he wanted the recording so that he could rewrite the draft minutes. Like in King, the owner was found to have requested the recording for an improper purpose, and the Tribunal found that he was not entitled to it.
However, unlike in King, the Tribunal in Kent found that recordings were records. It did not matter for what purpose the corporation created the recording or whether the corporation had advised owners at the meeting that the recording was for the minute-taker to review later. If the corporation chose to record the meeting, the recording was a record that the corporation was required to maintain.
AGM Recordings Are Records: So, What Does This Mean?
The key takeaway, therefore, is this: if a Board does not want to keep AGM recordings and give them out to owners on request, it should not make a recording. The minute-taker should be at the meeting and, if they want to record the meeting for their purpose, they can do so on their own device.
The Board must retain recordings the Corporation does make for the period the Board determines is required to perform its duties. In most cases, since the recording will not be referred to once the minutes are prepared, this will be ninety days, or less, to allow sufficient time to draft the minutes. Boards should pass a resolution setting the retention period for recordings of owners’ meetings at a board meeting, which should be captured in the minutes available to owners.
If an owner requests a recording , a corporation will likely need to consider the purpose for which the owner is requesting the record. If the owner wants the recording because they believe that the minutes are wrong (or will be wrong) and they want to rewrite them, for example, the request can be refused for being for an improper purpose.
While the CAT has, at the time of writing, not found a proper purpose to request an AGM recording, corporations will need to take special care when querying an owner about the purpose of their request and/or if they intend to refuse to provide a recording. The CAT can award a penalty if a record is refused without a reasonable excuse. In our experience, it is often most cost-effective to make a short inquiry with legal counsel when drafting the Board’s response, to avoid a prolonged and expensive CAT dispute later.