CAT Finds that AGM Videorecording is Not a Record

In a recent decision published on October 10th 2024, the Condominium Authority Tribunal (CAT) addressed whether a unit owner was entitled to a copy of the videorecording of their condominium corporation’s virtual Annual General Meeting. The case, Bogue v. Carleton Condominium Corporation No. 288, 2024 ONCAT 154, adds yet another twist in the debate about whether a videorecording of an AGM is a “record” of the condominium corporation that a unit owner is entitled to.

Background

For the virtual AGM held on June 15th 2023, the condominium corporation retained a virtual meeting services provider to provide the electronic meeting and voting platform.

In response to the unit owner’s Request for Records seeking the recording of the 2023 AGM, the condominium corporation responded that they did not possess such a record. The unit owner commenced a CAT case against the condominium, and this CAT case was apparently the 5th time that these two parties have appeared in the Tribunal.

Prior to this case, the CAT had ruled on January 26th 2024, in Bogue v. Carleton Condominium Corporation No. 288, 2024 ONCAT 15 (between the same owner and the same condominium corporation), that the unit owner was entitled to a copy of the videorecording of the virtual AGM held in 2022, because it was a “record” possessed by the condominium corporation. At the 2022 AGM, the videorecording was made and managed by the Corporation’s legal counsel, since a staff member of their legal counsel was acting as the minute-taker. The CAT Member in this previous case ruled that the 2022 AGM videorecording was a “record” in the possession of the condominium corporation through its agent, their legal counsel.

At the 2023 AGM, it was the virtual meeting provider who made the videorecording of the virtual meeting for their own “training, quality assurance and compliance purposes”, and a separate third-party was retained to prepare the minutes. Upon receiving the unit owner’s Request for Records seeking the 2023 AGM videorecording, the Condominium Manager – on her own accord – reached out to the virtual meeting provider to obtain a copy of the 2023 AGM videorecording, in an attempt to be helpful in responding to the Request for Records.

CAT’s Ruling

The CAT found that the 2023 AGM videorecording was made by the meeting provider for its own purposes, not at the request of the condominium corporation, and the condominium did not pay for or direct the meeting provider to create the videorecording. The CAT thus held that the 2023 AGM videorecording was not considered a “record” of the condominium corporation.

The CAT likened the situation to if a unit owner had made a secret recording of the virtual AGM, unbeknownst to the condominium corporation, and then provided it to the condominium; that unit owner’s recording would not form part of the condominium’s records either.

Ultimately, the CAT held that the Manager’s offer of compromise to the unit owner, namely to let her view the 2023 AGM videorecording at the management office but not to record any portion of it, was reasonable.

The CAT awarded no legal costs to either side because, “The question of whether an audio-visual recording is a ‘record” is both somewhat novel given the more recent phenomenon of “Zoom” meetings in the condominium context and, as the Tribunal jurisprudence reveals, somewhat dependent on the particular facts.”

Implications for Condominium Corporations

This decision highlights several important considerations for condominium corporations:

1. Who Creates and Keeps the Recording:

   • If a third-party service provider creates a recording of an AGM for their own purposes rather than at the condominium corporation’s behest, then the third-party’s recording is not a “record” of the Corporation.

2. Announcing at the Outset of the AGM about the Recording:

   • Effective communication with the attendees at the outset of an AGM, advising that the third-party meeting services provider or third-party minute-taker is creating and keeping a recording of the AGM, will help clarify to unit owners that the recording is not a “record” of the condominium corporation.

3. Reasonable Access Should be Offered:

   • Offering reasonable access to records, even when they are not considered a formal “record” of the condominium corporation, can demonstrate good faith and transparency – even if the condominium is not obligated to.

4. Parties Should Not Misuse the Tribunal to Pursue Governance Grievances:

   • The CAT noted that governance disputes should not be cloaked as records requests. The Tribunal is not the appropriate venue for a unit owner to repeatedly bring complaints about the governance of their condominium corporation.

This CAT decision serves as an important reminder that whether an audio/video recording of an AGM is a “record” of the condominium corporation which unit owners are entitled to obtain, is highly fact-dependent and situation-specific, and may depend on who created and possessed the recording.

Although not explicitly stated by the Vice-Chair in this CAT decision, perhaps the true underlying reason for the two different conclusions by two different CAT adjudicators in the same year with the same parties about the same question, is that this was now the 5th time that the unit owner had brought a CAT case against the condominium corporation. The more frequently a unit owner is a repeat litigant in the Tribunal, the more skepticism that an adjudicator might naturally have towards the owner’s claims.