Strata Alert: Handling Nuisance Records Requests under Section 36 of the Strata Property Act

Strata Alert: Handling Nuisance Records Requests under Section 36 of the Strata Property Act

 

Paul G. Mendes, Partner
Phone: 604-685-4894
Email: pgm@lmlaw.ca

 

Lahrkamp v. MTCC No. 932

Ontario gets a lot of things wrong.  The Toronto Maple Leafs, and the misspelling of that team’s name immediately come to mind.  But sometimes the folks in “Upper Canada” get it right.  As the old saying goes, even a broken clock is right twice a day!

One thing that they do get right in Ontario is record requests of Condominium Corporations (i.e. stratas) under the Condominium Act (the Ontario version of the Strata Property Act).

One of the most common complaints I get from council members and strata managers is the problem of “nuisance” document requests made under sections 35 and 36 of the Strata Property Act.  Section 35 requires a strata to keep certain records, and section 36 requires a strata to make those records available for inspection, and to produce those records to owners and others upon request.

The problem is that s. 36 does not limit the number of times a person can make those requests, nor does the Strata Property Act concern itself with the reasons for the request.  As a result, an owner can make multiple requests for the same records over and over and, on an initial reading of section 36, the strata corporation must comply with those requests.

Believe it or not, there are some owners who make requests under s. 36 for the sole purpose of burdening the strata corporation, the strata council and the strata manager with the duty of responding to those requests. Such owners do not care what the information says, they just want to make sure that someone has to go through the time-consuming effort of providing the requested information over and over.

In Ontario, however, this problem is addressed by language in the Ontario Condominium Act which requires the request for documents to be “reasonably related to the purposes of this Act”.  The Ontario Condominium Act is about to be amended to change that to “having regard to the purposes of the Act”, but the effect is probably the same.

In the Lahrkamp decision, a condominium corporation refused to produce records and the matter ended up in court. The Judge ordered the strata to produce some of those records but not others. With respect to the records that the strata was not required to produce, the Judge wrote as follows:

“In my view, the inevitable conclusion to be drawn from the plaintiff’s conduct and dealings related to his requests for access to records over the years was that the plaintiff was not genuinely interested in looking into certain specific aspects of the financial operations of the defendant but was either oblivious to the fact that he was wasting other people’s time and money or, more likely, that he took a certain delight in pestering the Board and others with his demands.”   

As my teenagers like to say: 

There is a lot of this in BC.  I can think of a dozen clients I have right now that are faced with an owner making onerous and repetitive document requests for no apparent purpose other than “pestering” the council. Some these owners have been doing it at their strata for years.  If my experience is typical, this is probably going on at hundreds of stratas across BC, when you consider how many strata lawyers we now have in BC.

Although there is nothing in the Strata Property Act that requires the strata to consider the reason for the request, or the number of requests, there are some things a strata can do to minimize the impact of these nuisance record requests:

  1. Make the documents available for inspection first. Nothing in the Strata Property Act requires the strata to comb through its records to find specific information for owners.  If an owner wants copies of all records related to the enforcement of the pet bylaws going back to 2001, show him or her the boxes of strata records going back to 2001 and let them comb through those records on their own. Some people will go away if satisfying their curiosity comes at the price of hours spent reviewing boring strata records.
  2. Don’t deliver records without advance payment of the fee. Section 36 only requires production of the records if the person making the request pays the prescribed fee (25 cents per page) in advance.  The fee applies even if the document is emailed or saved to a USB fob or CD Rom.  If a person asks for all the financial statements going back to 1972, make them pay first. Some people will go away if satisfying their curiosity comes at a price of hundreds of dollars. 
  3. Don’t answer questions about the documents. Nothing in the Strata Property Act requires the council or the strata manager to spend time explaining the documents.  You might do that in some cases as a matter of courtesy, but you would never do it for a person who is in the habit of making nuisance requests.
  4. Keep track of requests and the records you have produced in the past. Section 36 does not actually require the strata to produce the same records over and over to the same person. If an owner requested copies of all the financial statements back to 2001 last year, and makes the same request again today, remind him or her that the strata complied with that request last year. Let them explain why they need those same records again. Unless they can come up with a good reason, I would not recommend producing those records again. 
  5. Consider whether the documents are protected from disclosure by solicitor client privilege. Case law in British Columbia states that a strata corporation is not required to produce documents that are subject to solicitor client privilege. Some owners will make document requests in anticipation of legal proceedings or while legal proceedings are underway. The council should get legal advice on whether or not the requested documents might be subject to solicitor client privilege before disclosing them.
  6. Consider whether repeated records requests contravene the strata’s nuisance bylaws. This is a tricky strategy but it is worth considering. Standard bylaw 3 says that an owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that “unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot”.  Arguably, repeated requests of this nature are a nuisance if you can establish that the obvious purpose of those requests is to pester the council or the strata manager.

What I describe above are “self-help remedies” that are designed to deal with true nuisance requests. These tactics should only be used in the most extreme cases and should not be used to thwart legitimate document requests. Remember always that the council has a duty to act honestly and in good faith when carrying out its duties under the Strata Property Act.  These strategies should not be employed without the benefit of legal advice first.

WHAT WE DO: Lesperance Mendes advises strata corporations and owners on all aspects of bylaw drafting and enforcement. If you are faced with a particularly challenging problem at your strata, please give me a call at 604-685-4894. 

 

THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on without independent legal advice.