By Melinda Andrews
One of the outcomes of the pandemic is that many of the Board meetings and annual general meetings (AGMs) in the condominium industry have shifted from in-person to virtual attendance. While we can debate the benefits and drawbacks of this approach (I happen to like them!), the reality is that amendments to the Condominium Act now allow for this approach to continue, if boards so wish.
In many cases, condominiums are opting to keep a video recording of meetings to assist in creating the minutes. Platforms like Zoom make this easy to do. But the result is that it has generated what seems to be an endless source of disputes that have wound up at the Condominium Authority Tribunal (CAT) of Ontario over who is entitled to receive a copy of the recording.
In the most recent cases, the CAT concluded that, depending on the circumstances, the meeting recordings can form part of the condominium’s records that must ultimately be disclosed to owners when requested. The relevant circumstances include whether the recording was created by one of the condominium’s agents (like a Director or Property Manager) and whether the recording is saved in the condominium’s records or falls into the possession of one of its agents. The key point is that if the recording comes into the condominium’s possession, it is then considered part of the formal records that must be disclosed.
At first glance, it sounds innocuous: why would recording a meeting be problematic? Particularly when people made their comments in a public-like setting.
But on closer consideration, recording a meeting can raise more complex issues. In my experience, the primary concern is that it has the potential to stifle the proper conduct of the condominium’s business. If an owner or director knows the meeting is being recorded in a manner that might form a formal record to be disclosed to other owners, they might be deterred from properly participating in the meeting. This dynamic goes against the meeting’s purpose, which is to freely discuss the condominium’s business, raise concerns and get answers to questions.
A further concern is that the recording has the potential to cause arguments about who is entitled to obtain a copy. There is also a risk that it can be used after the fact to cause potential disputes (i.e. rehashing disputes that have already been dealt with) either between owners or against the condominium.
Given these concerns, our firm’s recommendation is that in most cases its best to avoid taking these specific types of video recordings. Instead, the meeting minutes can be taken the “old-fashioned” way by hand (typically typed during the meeting). For Board meetings, this will be straightforward. For owners meetings or AGMs, if a recording is needed, owners should be advised that a recording (typically an audio recording) is being taken strictly to prepare the minutes, but that it will be held only by the minute taker and destroyed once the minutes are prepared. The best approach, though, is to ensure the recording is taken by someone independent from the condominium (i.e. not a director or the property manager), like a minute taker so that it never forms part of the condominium’s records.
The key point underlying this discussion is that the meeting minutes are not intended to be a verbatim transcript of every word spoken at the meeting. The minute taker’s role is to boil down the discussions to key points and record important items of business and decisions taken. So, from this standpoint, not only does recording the meeting raise the potential for problems and arguments, in my view it is not actually necessary and often best avoided.
Melinda Andrews is an Associate at Davidson Houle Allen LLP, a boutique condominium law firm serving Eastern Ontario.