The Condominium Authority Tribunal Decides that Video Recordings of AGMS are NOT Records... Again?

Here we go again!

In a recent ruling issued on October 10, 2024, the Condominium Authority Tribunal (CAT) deliberated on the question of whether a unit owner had the right to obtain a copy of the video recording from their condominium corporation's virtual Annual General Meeting.

The case (Bogue v. Carleton Condominium Corporation No. 288 (2024 ONCAT 154)), introduces a new dimension (or a revert to original?) to the ongoing discussion regarding whether a video recording of an AGM qualifies as a "record" of the condominium corporation, and the implications of whether it must be provided to a unit owner when submitting a Records Request.

During the virtual Annual General Meeting held on June 15, 2023, the condominium corporation enlisted the services of a virtual meeting provider to manage the electronic meeting and voting platform. Following a unit owner's request for a recording of the 2023 AGM, the condominium corporation informed them that no such recording existed.

Consequently, the unit owner brought the matter before the Condominium Authority Tribunal (CAT), marking the fifth instance of these two parties appearing before the Tribunal. In a previous case involving the same owner and condominium corporation (Bogue v. Carleton Condominium Corporation No. 288 (2024 ONCAT 15)), the Condominium Authority Tribunal (CAT) issued a ruling on January 26th, 2024.

The case centered around the unit owner's request to obtain a copy of the video recording from the virtual Annual General Meeting (AGM) held in 2022. The CAT determined that the video recording constituted a "record" owned by the condominium corporation. It was established that during the 2022 AGM, the Corporation's legal counsel was responsible for recording and managing the video recording, with one of their staff members serving as the minute-taker. The CAT Member in the prior case concluded that the 2022 AGM video recording qualified as a "record" maintained by the condominium corporation through its legal counsel representative.

During the Annual General Meeting (AGM) held in 2023, the virtual meeting service provider captured the proceedings for internal purposes like training, ensuring quality, and meeting compliance standards. Meanwhile, an external third-party was tasked with preparing the official meeting minutes. Upon receiving a formal Request for Records from a resident seeking access to the video recording of the 2023 AGM, the Condominium Manager took the initiative to reach out to the virtual meeting provider directly. This proactive step was aimed at obtaining a copy of the recording to facilitate the fulfillment of the resident's request in a timely manner.

Summary of CAT Decision on 2023 AGM Video recording

The Condominium Authority Tribunal (CAT) determined that the video recording of the 2023 Annual General Meeting (AGM) was not created at the request of the condominium corporation but by the meeting provider for its own use. The condominium did not provide funding or instructions for the recording, leading the CAT to rule that it did not qualify as a "record" of the condominium corporation.

The CAT illustrated this decision by comparing it to a hypothetical situation where a unit owner clandestinely recorded the virtual AGM without the condominium corporation's knowledge and later shared it with the condominium. In both cases, the recordings were not considered part of the condominium's official records.

The Manager's compromise offer to the unit owner, which allowed her to view the video recording at the management office but prohibited her from making any copies, the CAT determined this arrangement to be fair.

Furthermore, the CAT did not award legal costs to either party due to the novelty of determining whether an audio-visual recording qualifies as a 'record,' especially with the increasing prevalence of "Zoom" meetings in condominium settings. The outcome of such cases is heavily influenced by the specific circumstances involved, as established by Tribunal precedent.

So why the different decision, again? While it was not explicitly mentioned, the possible reason for the different conclusions (reached by two different CAT adjudicators, in the same year, involving the same parties and issue) could be attributed to the fact that this marked the fifth instance where the unit owner had initiated a CAT case against the condominium corporation.

It seems that the higher the frequency of a unit owner being a recurrent litigant in the Tribunal, the greater the level of skepticism that an adjudicator may naturally harbor towards the owner's assertions. Perhaps this is the true lesson learned from this CAT case.

Implications for Condominium Corporations

The CAT ruling underscores the significance of recognizing that whether an audio/video recording of an AGM qualifies as a "record" accessible to unit owners of the condominium corporation is heavily influenced by specific circumstances and facts, including the creator and keeper of the recording. Furthermore, this ruling sheds light on several crucial considerations that condominium corporations should take into account:

Disclosure of Recording at the Start of AGM

Clear communication at the beginning of an AGM informing attendees that a third-party service provider or minute-taker is creating and retaining a recording of the meeting can help avoid confusion and establish that the recording is not a formal record of the condominium corporation.

Creation and Custody of Recordings

It is important to note that if a third-party service provider generates a recording of an Annual General Meeting (AGM) for their own purposes without being instructed by the condominium corporation, that recording does not qualify as an official "record" of the Corporation.

Provision of Reasonable Access

Even if certain documents are not classified as official records of the condominium corporation, offering reasonable access to them showcases a commitment to transparency and good faith, which can benefit the corporation's reputation and trust among unit owners.

Avoiding Misuse of Tribunal for Governance Disputes

The Condominium Authority Tribunal (CAT) emphasized that disputes related to governance should not be disguised as requests for records. Unit owners should refrain from repeatedly using the Tribunal as a platform to raise grievances about the governance of their condominium corporation.

To summarize, the recent ruling deliberated on a unit owner's right to obtain a copy of a video recording from their condominium corporation's virtual Annual General Meeting (AGM). The case introduces a new dimension to the ongoing discussion on whether such recordings qualify as a "record" and must be provided to unit owners upon request, where it seems to have based its decision on the owner's frequent CAT cases against the corporation. So, in this case, the CAT did not rule the recording as a record of the corporation - but perhaps this isn't a case that all condo corporations should heed as the rule of thumb when faced with similar requests from owners.

Remember, transparency is best and helps build community... but owners share a responsibility in using mechanisms such as Records Requests and the Condominium Authority Tribunal as a shield, not a sword.

-Stratastic Inc.