What If an Owner Doesn’t Have Proper Reasons for Requesting a Record?

The amended Act [Section 13.3 (1) of Regulation 48/01] now says that owners, purchasers and mortgagees (or their duly authorized agents) can now see records provided their request is 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.

So, the person making the request still needs to have a proper purpose.  I also think it’s clear that a pure fishing expedition is still not a proper purpose.

However, the Act [Section 13.3 (2) of Regulation 48/01] goes on to say that a person entitled to examine or obtain copies of records under subsection 55 (3) of the Act is not required to provide the corporation with a statement of the purpose of the request.  On the prescribed Request for Records form, the requester is, however, required to state as follows: I affirm that this request for records is solely related to my interests as an owner, a purchaser or a mortgagee, having regard to the purposes of the Condominium Act, 1998.

The bottom line is that the person making the request can no longer be asked for his or her reasons…but he or she must affirm that he or she has proper reasons.

But what if there is other evidence that the requester’s reasons are not proper? What if there is other evidence to challenge the requester’s affirmation?

This question was addressed by the Condominium Authority Tribunal (CAT) in the recent case of Benjamin v PSCC 1008. In the Benjamin case, the condominium corporation alleged that the owner (making a request for records) had improper reasons for seeking the records….and could not be trusted to handle the records properly (once received). CAT ultimately rejected the condominium corporation’s arguments and held that the owner was entitled to the requested records. But it’s clear from the decision that condominium corporations can still question a requester’s reasons. It’s just that the corporation would need to be able to provide proof of the improper reason(s) (without being able to ask the requester for reasons).

The Tribunal said:

The Respondent’s position that Mr. Benjamin is disentitled to the records he seeks under subparagraph 13.3 (1)(a) fails on three grounds. First, the Respondent has not proven, on a balance of probabilities, that Mr. Benjamin misused records given to him in the past. Second, the Respondent has cited examples of Mr. Benjamin’s past conduct which do not relate directly to records or their use. Even if this conduct were disruptive, it is not disqualifying. Third, the Respondent has not established a connection between the conduct it complains of and Mr. Benjamin’s current records request. It is this current request that is the subject of this hearing and it is the purpose of the current request that I must consider. The Respondent led no evidence of the purpose for Mr. Benjamin’s current request other than speculation based on his alleged past conduct.

 …

In this case, the Respondent took the position that Mr. Benjamin is not entitled to the records because it questioned his good faith and the overall purpose for his request. As mentioned, I found that the Respondent had not established that Mr. Benjamin’s request violates the provisions of subparagraph 13.3(1)(a) of the Regulation and therefore disentitles him to the records. Even though the argument failed, the Respondent was entitled to advance their position in defending their refusal of the request and therefore, I do not find that the fact that it took this position to be grounds for a penalty to be imposed by the Tribunal.

In summary:  I think a requester will be deemed to have proper reasons (as affirmed in the Request for Records) unless and until the condominium corporation can prove otherwise (based on independent evidence).  But a condominium corporation still has the right to raise the issue.

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