By Shawn Smith, Cleveland & Doan LLP
Recently
I was asked by one of your fellow readers to write on the issue of privacy
legislation and how it impacts on an owner’s ability to obtain documents from a
strata corporation. I thought that was a great suggestion since it is a topic
that is (or at least should be) of interest to everyone who lives in a strata
corporation and an issue, which seems to be arising more often as of late. I
will also address the issue of access to documents in its broader context, not
just in relation to privacy laws.
The
basic framework for access to documents is found in Sections 35 and 36 of the Strata
Property Act (the “Act”). Section 35 and the associated Regulation 4.1 set
out the types of documents, which the strata corporation must keep, and for how
long. Section 36(1) of the Act provides that:
(1) On receiving a request, the strata
corporation must make the records and documents referred to in section 35
available for inspection by, and provide copies of them to,
(a) an owner,
(b) a tenant who,
under section 147 or 148, has been assigned a landlord's right to inspect and
obtain copies of records and documents, or
(c) a person
authorized in writing by an owner or tenant referred to in paragraph (a) or
(b).
Pursuant to Section 36(3) the documents
must be provided within 2 weeks of the request (except in the case of the
bylaws which must be provided within 1 week). The strata corporation may charge
25 cents per page for copying. Neither the strata corporation nor its strata
manager can charge the person requesting the documents for the labour costs
involved in supervising access to or assembling and copying documents.
What if an owner requests copies of all
the documents listed under Section 35 of the Act? Must the strata corporation
comply? In the writer’s opinion, the answer is no. The documents must certainly
be made available to the owner, but where countless hours would be spent
copying documents which are clearly part of a “fishing expedition” the strata
corporation would undoubtedly be justified in inviting the owner making the
request to view the documents and identify those particular ones he or she
wishes to have copies of. Some support for this is found in Kayne v. The
Owners, Strata Plan LMS 2374 (Oral Reasons July 26, 2007 Vancouver Registry
S072740) wherein the court stated: “Section 36 requires that those documents be
made available to a member of the strata corporation within 14 days of the
request.”
Kayne is also an important decision in that
it gives some further direction as to the nature of the documents to be kept
and produced under Sections 35 and 36. The court made three general findings:
1. The Act mandates no particular form in
which the documents are to be kept and no particular level of detail that is to
be contained in them. (In other words, there is no standard format for
minutes);
2. While the Act provides that the strata
corporation must maintain a book of account showing money received and spent by
the strata corporation, it does not have to produce underlying documents such
as receipts and cheques to an owner; and
3.
Correspondence to
and from the council means official correspondence and does not include notes
and email between council members.
Many owners who request to see
documents (particularly correspondence) are now being told that they cannot see
those documents because of privacy laws which prevent the strata corporation
from doing so. In the writer’s view (for reasons which will be explained below)
this is not necessarily the case and is being used as an excuse to simply deny
those owners access to documents.
The legislation that strata
corporations are relying on to take this position is the Personal
Information Protection Act (“PIPA”). PIPA is provincial legislation and
came into effect on January 1, 2004. In brief, it requires an “organization”
(which includes strata corporations) to have a person’s permission (either
express or implied) to collect, use and disclose their personal information. To
do so without their consent is a serious matter and the legislation provides
for potentially severe penalties for doing so.
Strata corporations, often on the
advice of strata managers, have increasingly been taking the position that any
document (i.e. a letter) that contains personal information (i.e. a name and
unit number) cannot be disclosed. It appears, however, that Section 18(1)(o) of
PIPA is being ignored or overlooked. That section provides:
(1)
An organization may
only disclose personal information about an individual without the consent of
the individual, if: (o) the disclosure is required or authorized by law,
[emphasis added]
Arguably Section 36 of the Act is
“disclosure required or authorized by law”. Another piece of legislation (being
the Strata Property Act) clearly authorizes certain documents, which may
contain personal information to be made available to certain persons who
request them. As such, permission of the person(s) who created or are
referenced in the document to disclose the same is not required. Practically
this makes sense. Owners should be entitled to know what is going on within the
strata corporation since they have an ownership interest in it. The argument
against disclosure, if taken to its fullest, produces an absurd result. Section
36 of the Act is effectively stripped of any purpose or effect. An owner who is
accused of breaching a bylaw would not be able to see the letter(s) of
complaint against them and would be precluded from mounting a proper defense to
the same. Surely this is not what the drafters of PIPA intended.
Some support for this position is found
in a decision of the Information and Privacy Commissioner (the person charged
with overseeing the implementation of PIPA). In Order P06-01 the Commissioner
was required to consider whether or not letters from the College of Dental
Surgeons in response to a complaint against a dentist could be produced or not
without the complaint’s permission. In deciding that they could the
Commissioner stated:
“…s.18(1)(o)
[of PIPA] applies, as the College’s rules authorized the organization to
respond to the applicant’s complaint.”
This would seem to be no different a
case than under s.36 of the Act.
Even if Section 18(1)(o) of PIPA were
not applicable, the production of documents cannot be flatly refused. The
proper course would be to redact the documents and remove any reference to
“personal information” contained in them. A blanket refusal to permit an owner
access to documents is not justifiable. The debate, however, will continue
until the court finally resolves the matter.
This article is intended for information
purposes only and should not be taken as the provision of legal advice. Shawn
M. Smith is Honourary Legal Counsel for the Pacific Condominium Association and
is a partner with the law firm Cleveland Doan LLP and can be reached at
(604)536-5002 or shawn@cleveland-doan.com.