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Are AGM recordings records of the corporation?

The negative consequences that can result as video recording for virtual and hybrid meetings becomes readily available.
Thursday, January 30, 2025
By James Davidson and Nancy Houle

For many years, long before the arrival of video conferencing, condominium meeting minute takers had been creating audio recordings of condominium meetings. These recordings were used by the minute takers to prepare accurate (although typically not verbatim) minutes; and then the recordings were destroyed. These recordings were never intended to be records of the corporations and, in our view, were not records of the corporations.

These same reasons apply now that video recording is so readily available. Video recordings (for virtual or hybrid meetings) can similarly be created to assist the minute taker, whereupon the recording can be destroyed after the minute taker’s work is done.

But if such recordings are considered to be records of the corporation, many negative and serious consequences can result:

1. The fact of being recorded can intimidate owners and cause them to stay quiet at the meeting, rather than to participate.
2. This can also embarrass owners who have speaking disabilities or who don’t speak very well in public – again forcing them to stay quiet.
3. This creates a permanent record of verbal jousting that may take place at meetings – risking hurt feelings long into the future. Written minutes, carefully worded, allow for these sorts of “fights” to cool off and heal. As well, a condominium corporation’s records are available to both current and future owners, thus increasing the risk.
4. This runs the very real and serious risk that embarrassing or compromising photos or video snippets might be posted on social media.
5. All of this can cause serious upset and dissension in a condominium community. More importantly, owners who are most interested in sowing
discontent or upset can use the records request process to gain access to these recordings for disruptive purposes.
6. This can also create unreasonable and unnecessary nit-picking over the wording of the minutes.
7. In cases where an owner asks for a copy of the recording, it may be appropriate to consider whether or not any portions of the recording must be redacted in compliance with Section 55 (4) of the Condominium Act; and if so, there may be technical challenges for the board to overcome in order to achieve this required redacting.
8. The overall result is that treating such recordings as corporate records may force most condominium corporations not to make such recordings at all – thereby depriving the minute takers of a very useful tool when seeking to prepare adequate minutes.

With these concerns in mind, we have been hoping that the Condominium Authority Tribunal (CAT) might confirm the following: meeting recordings which are created only for use of a minute-taker, and for no other purpose, do not become records of the corporation, and should be destroyed after the minute-taker no longer has use for them. The Tribunal may be coming closer to this conclusion, but is not yet quite there.

Relevant Decisions

In King v. YRCC 692, July 29, 2022, the CAT held that, although an audio recording of an AGM might be a record of the corporation, the owner was not entitled to the audio recording of the AGM because the owner did not have a proper reason for this request. The Tribunal said:

“An owner is not entitled to insist that the wording of board or AGM minutes reflect how they believe it should be drafted. Requesting this record to “prove” what the Applicant believes to be the correct wording on about effectively minor details is not a request made by an owner having regard to the purposes of the Act.”

Kent v. CCC 268, November 21, 2022, describes how a special meeting of the owners was held on the Zoom video conferencing platform. The meeting was recorded to assist in creating minutes of the meeting. The CAT held that the recording was a record of the corporation. However, the Tribunal also held that the owner was not entitled to the recording because the owner’s request was made for a purpose that was not “solely related to that person’s interests as an owner, a purchaser or a mortgagee of a unit, as the case may be, having regard to the purposes of the Act.”

In January 2024, in Bogue v. CCC 288, the applicant owner asked to receive the audio/video recording of the corporation’s AGM, which had been held virtually, as well as any audio/video recordings of the board’s meetings, which had also been held virtually. The Tribunal held that these recordings are records of the condominium corporation and that owners are therefore entitled to see them. This was true even if the recordings were created by a third-party agent hired as a minute taker by the condominium corporation. The Tribunal said:

“It is fair to say that virtual meetings are now the norm and will likely continue to expand in use and frequency. Condominium corporations should therefore be mindful of this fact and that recordings of virtual meetings are fast becoming a type of record which should be managed with care and attention for the benefit of all owners. Condominium corporations must take all possible steps to adequately preserve those records and make them available to owners, on the same footing as any other record as per the requirements of the Act and its regulations. Of course, the exceptions provided in the Act and regulations, such as in subsection 55(4) of the Act, continue to apply. In sum, technological advances should be used in such a way so as to make access to the records of condominium corporations easier and more beneficial for all concerned parties.”

In October 2024, in Bogue v. CCC 288, the owner requested “any and all audio-visual recordings and audio transcripts of the AGM held on June 15, 2023”. In this case, the CAT held that the recordings were not records of the corporation. The Tribunal said:

“The facts before me are different from those set out in the January 2024 decision. I do not find that CMG’s possession of the recording makes it a record of CCC 288. Simply because the condominium manager asked for a copy of the recording and received it, does not mean it becomes a record of CCC 288; it was not created by or for the corporation as a corollary of its documentation of the business and management of the corporation.”

Perhaps the Tribunal is starting to see the logic and benefit of treating such recordings (created only for use of a minute taker) not as records of the condo corporation because doing so can have many negative consequences.

James Davidson and Nancy Houle are partners at Davidson Houle Allen LLP Condominium Law. dhacondolaw.ca

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