Record Retention and Disclosure
New Record Retention and Disclosure Requirements
Ashley Winberg - Elia Associates
The new regulations to be established under the Condominium Act provide new detailed requirements for the retention and disclosure of condominium records. This article details the new record retention periods, the requirements that must be satisfied by the mean of record retention and the new 4 step procedure to be followed by the corporations and owners wherever records are requested.
Minimum Record Retention Periods
The amendments specify three minimum retention periods for three different categories of records. However, the minimum retention periods can be extended if desired and must be extended in the event of contemplated or actual litigation or where there is an outstanding request for records at the time that the minimum retention period expires. The three minimum retention periods are specified below:
- The amendments specify that proxies, ballots and recorded votes at meetings must be kept for a minimum of 90 days from the date of the meeting.
- The amendments also specify that there is a minimum 7 year retention period for all financial records, returns and other specified corporate records.
- Lastly, the amendments specify that there is an unlimited retention period for certain fundamental corporate documents.
Means of Record Retention
The foregoing records can be retained either electronically or in paper format as detailed below:
- If retained electronically, the records must be: able to be reproduced in an accurate and intelligible form within a reasonable period of time; password-protected or have another method of protection from unauthorized access; and automatically backed up and be able to be recovered or have a reasonable means of protection against loss, damage and inaccessibility of information.
- If retained in paper format, the records must be kept on the condominium’s property or at an appropriate location that is close to the condominium’s property that enables the corporation to carry out its objects and duties.
Disclosure of Records
Four Step Procedure for Record Disclosure
In addition to the new record retention requirements, the amendments also provide a new 4 step procedure that governs how requests for records are to be handled, which is detailed below:
- Request Submitted
First, a request for records must be submitted using a standardized form that will be established by the Ministry and the request must identify the records requested, and indicate the preferred method of delivery (i.e. electronic delivery, hardcopy delivery, or an examination in person).
- Corporation’s Response
Second, within 15 days of receiving the request, the corporation must respond using a standardized form that will be established by the Ministry and the corporation’s response must include an itemized estimate of the associated costs (if any), and identify the records that will not be disclosed with an explanation.
- Individual’s Response
Thirdly, upon receipt of the corporation’s response, the individual requesting the records will then be required to confirm which records they wish to receive and include payment of the estimated cost (if any).
- Access and Accounting
Lastly, upon receipt of the individual’s response, the corporation will be obligated to deliver or provide access to the records requested by the individual.
Furthermore, if the actual costs related to the request are more than estimated, the individual will or will be required to pay the difference; however, the difference cannot be greater than 10% of the estimate. Furthermore, if the actual costs are less than estimated, the corporation will be required to reimburse the individual for the difference.
Core Records v. Non-Core Records
The timelines for the 4 step procedure detailed above varies depending on whether the records being requested are core records or non-core records.
- Core Records
Core records must be made available on an expedited basis and at a reduced cost.
If a core record is requested in electronic format, the core record must be delivered to the individual requesting same at no cost and within 15 days of the corporation receiving the individual’s request.
If the core record is requested in paper format, the core record must be made available for delivery or pickup within 7 days of the corporation receiving the individual’s response and payment. When a core record is requested in paper format the associated costs that can be charged by a corporation are limited to copying charges, which cannot exceed $0.20 per page.
If an individual has requested to examine a core record, the core record must be ready for the individual to examine within 7 days of the corporation received the individual’s response and payment, which can include reasonable labour costs incurred during the examination.
- Non-Core Records
If a non-core record is requested different timelines and different costs apply.
If a non-core record is requested, the non-core record must be delivered or made available for examination within 30 days of the corporation receiving the individual’s response and payment.
As opposed to core records, in the case of non-core records, the estimated cost can include photocopying charges for paper copies, which cannot exceed $.20 per page, and reasonable labour costs related to redactions.
If a corporation, without a reasonable excuse, prohibits an individual from examining a records request or refuses to provide an individual with access to same, the corporation could be subject to a penalty of up to $5,000, which is significant increase over the existing $500 penalty currently available. However, much like existing penalty, an owner can only enforce payment of the new $5,000.00 through Small Claims Court.