Rangan v. Metropolitan Toronto Condominium Corporation No. 996, 2022 ONCAT 71

CONDOMINIUM AUTHORITY TRIBUNAL

DATE: July 7, 2022 CASE: 2022-00171R

Citation: Rangan v. Metropolitan Toronto Condominium Corporation No. 996, 2022 ONCAT 71

Order under section 1.44 of the Condominium Act, 1998.

Member: Nicole Aylwin, Member

The Applicant: Sriram Rangan, Self-Represented The Respondent: Metropolitan Toronto Condominium Corporation No. 996, Represented by Namas Thayaparan, Agent

Hearing: Written Online Hearing – March 3, 2022 to June 13, 2022

REASONS FOR DECISION

A. INTRODUCTION

1The Applicant, Sriram Rangan, is a unit owner of the Respondent, Metropolitan Toronto Condominium Corporation No. 996 (“MTCC 996”). In a February 2022 records request, Mr. Rangan requested a number of records from MTCC 996. While MTCC 996 did provide some of the requested records, they did not provide the following: the December 2021 and January 2022 meeting minutes of the Shared Facility Committee (“SFC”); copies of the SFC monthly financial statements for the period of November 2021 to January 2022; and bidding process documents and quotes related to the search for new condominium management provider.

2It is Mr. Rangan’s position that MTCC 996 failed to respond to the Request for Records with accurate and complete information, and in doing so effectively refused him the SFC minutes and bidding documents without a reasonable excuse. He further alleges that he is entitled to receive copies of the SFC monthly financial statements, which MTCC 996 determined they would not allow him to examine. He has asked the Tribunal to order that he be provided with the SFC monthly statements, and that the maximum penalty of $5000 be imposed on MTCC 996 under s.1.44(1)6 of the Condominium Act, 1998 (“the Act”) for refusing to provide records without a reasonable excuse.

3MTCC 996 argues that it did not refuse to provide the records without a reasonable excuse. Although it admits that some errors were made in its response to Mr. Rangan’s request, MTCC 996 states that it followed up promptly correcting those errors and providing expanded reasons for why Mr. Rangan was not provided with the outstanding minutes (i.e., there was no meeting held in those months) and offering to provide the bid documents. They maintain that Mr. Rangan is not entitled to examine or obtain copies of the SFC monthly financial statements.

4The issues to be decided in this case are:

1. Is the Applicant entitled to the monthly financial statements of the Shared Facilities Committee under s. 55 of the Act?
2. Did the Respondent refuse to permit the Applicant to examine or obtain records without a reasonable excuse?
3. If so, should the Respondent be required to pay a penalty under s.1.44 (1)6 of the Act and in what amount?
4. Should any costs be awarded?

5For the reasons below, I find that Mr. Rangan is entitled to the monthly financial statements of the SFC. However, I find that MTCC 996 did not refuse these records without a reasonable excuse, nor did they refuse to provide Mr. Rangan with the other records requested without a reasonable excuse. I further find that Mr. Rangan is entitled to costs of $200 for his filing fees.

6Finally, I note that both parties are equally frustrated with one another and that this frustration stems from interactions that predate this dispute, however there is no doubt that this frustration has been exacerbated by this dispute. This is not the first dispute between these parties that has come before the Tribunal and is not likely to be the last. Unfortunately, because of this contentious relationship, both parties spent a considerable amount of time and energy attempting to argue matters and present evidence relating to issues that were not in front of me, wasting time and resources. In this decision only the evidence most relevant to the issues to be decided is set out in this decision.

B. ISSUES & ANALYSIS

Issue no 1: Is the Applicant entitled to the monthly financial statements of the Shared Facilities Committee under s. 55 of the Act?

7It is Mr. Rangan’s position that he is entitled to the monthly SFC financial statements for the period of November 2021 to January 2022. It is MTCC 996’s position that Mr. Rangan is only entitled to the annual audited statements of the SFC which are produced at year end, which in this case is May 31 of each year.

8Mr. Rangan argues that he has received the monthly SFC financial statements from MTCC 996 in the past and that MTCC 996 has not provided any basis for a refusal of the financial statements that is supported by the Act. He further notes that in April 2021 the SFC members of the committee passed a motion, which was documented in its minutes, that provides evidence that it is the responsibility of each condominium representative to share the SFC financial statements with their respective boards. In light of this evidence, Mr. Rangan argues that the board has both the access and responsibility to review the monthly financial statements (which are being shared with them via its SFC representative), and in doing so it makes these statements part of the records of the condominium to which he is entitled. He argues that there is no evidence that the SFC must provide approval to allow the examination of these documents by owners.

9MTCC 996’s position is that Mr. Rangan is entitled only to the annual audited financial statements of the SFC. This was the reason for refusal that MTCC 996 provided in its initial response to Mr. Ragan’s request for the monthly SFC statements. Although at one point during its submissions to this Tribunal, MTCC 996 did appear to change its position stating that it did believe Mr. Rangan was entitled to the ‘draft’ statements, as the hearing progressed, MTCC 996 reverted to its previous position that he was entitled only to the annual audited statements.

10MTCC 996 argues that although the representative of MTCC 996 that sits on the SFC does have access to all the records of the financial records of the SFC and although it is this representative’s responsibility to provide them to the board, MTCC 996 does not have the “power” to provide those shared facility records to Mr. Rangan, and that it has “no right to invalidate the established governance established in the shared facility agreement.”

11Under s. 55(1) of the Act, the condominium is required to maintain financial records of the corporation. In this case, the question is are the monthly financial statements of the SFC a record of the corporation? And, if so, is Mr. Rangan entitled to examine or obtain a copy of that record?

12MTCC 996 referred me to both Harder V. Metropolitan Toronto Condominium Corporation No. 905 2022 ONCAT 18 (“Harder”) and Mellon v. Halton Condominium Corporation No 70 2019 ONCAT 2 (“Mellon”). Both of these cases address the question of whether unit owner is entitled to examine the monthly financial statements of the corporation that are reviewed at board meetings (as opposed to the annual audited financial statements of the corporation). Although neither of these cases deal specifically with financial statements of a shared facility committee, MTCC 996 seems to be referring to these cases to make the argument that the audited SFC statements would be considered a ‘core-record’ and thus would be provided to Mr. Rangan for free and that Mr. Rangan should be satisfied with receiving the audited statements for free rather than having to pay for ‘non-core records’ such as the monthly financial statements.

13This argument misses the salient point about monthly financial statements made in these decisions. In both Harder and Mellon, the Tribunal found that the applicants were entitled to access the monthly financial statements that were reviewed by the board at their board meetings. While MTCC 996 is correct that the Tribunal found, in both cases, that the interim statements were non-core records, for which a fee could be charged, ultimately in both cases the interim statements were ordered to be provided.

14In Harder, the rationale for such as finding was that:

Documents, such as interim financial statements, become part of the accounting records of the corporation and are needed for the reference of the board, its treasurer and other individuals for accounting and auditing purposes. These documents are records of the corporation and are accessible under the Act.

15The unique facts before me in this case suggest that the SFC monthly financial statements, which are shared with the board through its SFC representative share many of the same qualities of the monthly interim financial statements discussed in Harder. They are documents that keep account of how MTCC 996’s significant financial contribution to the SFC is being allocated and are presumably used as a basis for decision making and accounting. They are a financial document that provides the board with information that allows them to provide proper instructions to their SFC committee representative. In MTCC 996’s submission they note “The representative of MTCC 996 will have access to all the records of the shared facility and it is her responsibility to provide them, discuss and take appropriate actions at the board meetings or at any discussion with MTCC 996 board members.” Thus, these monthly financial statements of the SFC committee are clearly documents that inform the financial governance of the condominium and are necessary for the board to exercise its governance role, a fact that is confirmed by the evidence that they are to be discussed at board meetings. When this context is taken into account, these documents are records of the corporation that are accessible under the Act.

16Further there is no evidence that the SFC monthly financial statements fall under the exceptions to an owner’s right to examine or obtain copies of records set out in s. 55 (4) of the Act. This finding is consistent with Abou El Naaj v. Peel Standard Condominium Corporation No. 935, 2021 ONCAT 5, where it was found that there is nothing in the Act which excludes records related to shared facilities from the records an owner is entitled to access.

17Finally, MTCC 996 has argued that they are not at liberty to share these records as it would ‘invalidate’ the established governance of the SFC. However, I have no evidence before me that there are any rules or bylaws established by the corporation or the SFC that would prohibit MTCC 996 from allowing owners to obtain these statements. The shared facilities agreement was not provided in evidence.

18Thus, having determined that in this case the SFC monthly financial statements are a record of the corporation that Mr. Rangan is entitled to access under s. 55(3) of the Act and that no exceptions to the entitlement apply in this case, I order that MTCC 996 provide Mr. Rangan with the monthly financial statements of the SFC for the period of November 2021 to January 2022. If any redactions need to be made, they shall be made in accordance with the Act.

19As to a fee for production, although the monthly financial statements of the SFC are non-core records and MTCC 996 is entitled to charge a fee for their provision, there is no reliable information before me on which to determine a reasonable fee. MTCC 996 simply cites $50 as the estimated fee without providing a breakdown of how this estimate was determined. Therefore, I will order MTCC 996 to provide the requested records to Mr. Rangan at no cost.

Issue no 2: Did the Respondent refuse to permit the Applicant to examine or obtain records, without a reasonable excuse?

20Mr. Rangan has requested a penalty be imposed against MTCC 996 pursuant to s. 1.44(1)6 of the Act, which states:

1.44(1) Subject to subsection (4), in a proceeding before the Tribunal, the Tribunal may make any of the following orders:

6. An order directing a corporation that is a party to a proceeding with respect to a dispute under subsection 55(3) to pay a penalty that the Tribunal considers appropriate to the person entitled to examine or obtain copies under that subsection if the Tribunal considers that the corporation has without reasonable excuse refused to permit the person to examine or obtain copies under that subsection.

21Before providing reasons for my decision on this issue, some history and context regarding the circumstances around Mr. Rangan’s request and MTCC 996’s response is helpful.

22On February 9, 2022, Mr. Rangan submitted a request for records on the prescribed form to MTCC 996. On this form Mr. Rangan requested several records, including the records at issue in this case, specifically:

1. The December 2021 and January 2022 meeting minutes of the SFC.
2. The SFC financial statements for the period of November 2021 to January 2022
3. Bidding process documents and quotes related to the search for new condominium management company.

23After submitting this request, Mr. Rangan sent four emails to the condominium manager and the board, each demanding an acknowledgement of his request and indicating that he will go to the Tribunal should he not receive all the records requested by the 30-day deadline. He continued to send these emails even after his request was acknowledged.

24MTCC 996 provided a response on March 11, 2022, on the mandated form, exactly 30 days from the request (“1st Response”). On this form, MTCC 996 indicated that Mr. Rangan:

1. Was entitled to examine or obtain a copy of the December 2021 and January 2022 SFC meeting minutes and these would be sent to him electronically.
2. Was not entitled to examine or obtain a copy of the SFC financial statements. The stated reason for this refusal was that board had been informed by the Shared Facilities Management that they would only provide the audited financial statements of the SFC. The explanation continued, stating that the board would provide the audited financial statements to Mr. Rangan for the requested period once received from the SFC.
3. Was not entitled to examine or obtain a copy of the bidding documents and quotes because it was a closed bidding process and due to the confidentiality of the information in the records it was not in a position to share this information.

25After receiving the board’s response on Friday March 11, 2022, at approximately noon, Mr. Rangan sent a follow up email at 1 pm inquiring as to why he had not received the December and January minutes and asking the board to provide reference to the parts of the Act that supported the board’s refusal to provide the SFC financial statements and the bidding documents and quotes. He provided a deadline of 5pm that same day to receive a further response from the board and indicated he would immediately file with the Tribunal if his deadline was not met.

26On March 15, 2022, the next working day of the condominium manager, Mr. Rangan received a return email from MTCC 996 that stated:

1. MTCC 996 had no knowledge of any SFC meetings held for the months of December 2021 and January 2022, thus there were no minutes to provide.
2. MTCC 996 was waiting on the approved/audited financial statement from the SFC.
3. And asked Mr. Rangan to review the response form attached to the email (“2nd Response”) for more information on the bidding documents.

27This 2nd Response was updated to indicate that the board had now determined that Mr. Rangan may examine copies of the requested bidding documents and quotes, however he must do so at the condominium management office during office hours. The 2nd Response also provided an estimate of the fee for providing access to the bidding documents records, amounting to a total of $137.10.

28By the time this email was received, Mr. Rangan had filed an application with the Tribunal and advised the condominium manager that all further communication should be done through the CAT-ODR system.

29It is Mr. Rangan’s position that the board has refused him the above records without a reasonable excuse. He argues that only the board’s 1st Response, which he argues was received two days late, should be the response considered for the purposes of determining if the records were refused without a reasonable excuse. He notes that in the 1st Response the board provided no indication that there were no meeting minutes for December 2021 and January 2022 and provided no acceptable justification for refusing the bidding documents and quotes, citing only that the bidding could not be shared for confidentiality reasons. He also argues that the reasons MTCC 996 provided for refusing the SFC financial statements are not valid.

30It is MTCC 996’s position that they have not refused the records without a reasonable excuse. MTCC 996 argues that its response to Mr. Rangan was not late, but was delivered on March 11, 2022, exactly 30 days from the February 9, 2022, request and that in sending the second response it endeavoured to provide a more complete answer to Mr. Rangan’s request. They further argue that there were extenuating circumstances that led to the 1st Response containing incorrect information and that they followed up as soon as possible, i.e., the next working day of the condominium manager, to attempt to clarify and answer Mr. Rangan’s questions.

31MTCC 996 explained that on March 1, 2022, a new condominium management company was appointed to manage the condominium, and while the board was aware of Mr. Rangan’s February 9, 2022 request, there was a “tussle” between the former management company and the new management company about who was responsible for completing the task of responding to Mr. Rangan. Knowing that the response was due on March 11, 2022, the board intervened and urged the previous management company to complete the response form. The company obliged and provided a draft response form that was to be completed by the new management company. This draft response form left out “vital” information. While MTCC 996’s submission on this point is not specific, I assume this vital information to be the information that was further provided to Mr. Rangan in the March 15, 2022, follow-up email and 2nd Response, which MTCC 996 notes was sent to Mr. Rangan only five days after the 1st Response. MTCC 996 argues that it was never its intention to deny Mr. Rangan records, but rather they did their best to respond to his request during a period of management transition that resulted in some disorganization.

32First, I will address the allegation that the 1st Response was delivered late and that the 2nd Response is not valid. Mr. Rangan’s Request for Records was sent on February 9, 2022. MTCC 996 sent a reply on March 11, 2022. This is exactly 30 days from the date of the request. The board’s 1st Response to the Request for Records was not late. Nonetheless, during this 30-day period, Mr. Rangan sent no less than four emails to the management office and the board which ‘reminded’ the board of its obligations and demanded further confirmation that he would receive the requested records. He continued to send these emails even after the board acknowledged receipt of the request, which they did on February 11, 2022. I remind Mr. Rangan that the board has a full 30 days to respond to his requests and whether MTCC 996 did or did not respond to those emails in a way that is deemed acceptable by Mr. Rangan, has no bearing on the question of whether the records were refused without a reasonable excuse.

33As to the 2nd Response, I agree that this response was ‘late’ as it was received 35 days after Mr. Rangan’s request. Here Mr. Rangan referred me to Martynenko v. Peel Standard Condominium Corporation No.935, 2021 ONCAT 125 (“Martynenko”) to suggest that the 2nd Response is not valid and should not be considered by me. I do not agree with Mr. Rangan’s interpretation of the reasons in Martyneko. Martyneko is similar to this case insofar as the respondent was provided multiple response forms and often these response forms provided different reasons for the refusals. However, the Tribunal did not find that these subsequent responses were ‘invalid’ but instead, based on the unique facts of that case, factored them into its reasons for determining whether the respondent replied to the applicant’s request in a manner consistent with the Act. I do the same here.

34Second, let me address the argument made by MTCC 996 that the change in management company led to the mistakes in the 1st Response and whether these mistakes amount to a refusal. On several occasions, this Tribunal has found that that while many duties may be discharged to a licensed condominium manager, ultimately the responsibility for knowing its obligations under the Act and meeting with them, rests with the board. Poor management is often not a reasonable excuse for refusing records.¹ However, in this case, I accept that MTCC 996 was undergoing a management change, and that this may have led to some mistakes being made and the need for a 2nd Response. However, the evidence also shows that MTCC 996 attempted to rectify these mistakes quite quickly, sending additional information to Mr. Rangan and correcting inaccuracies five days after the first response was sent, which was the next working day of the condominium manager. This is not a case where the evidence indicates that the board abdicated responsibility to management and then claimed it was not responsible for the mistakes. In this case, the board quickly intervened and rectified the original mistakes contained in the response form and offered to provide some of the outstanding records. So, while there may have been a short delay between the 1st Response and the 2nd Response, I do not find on the whole, that the mistakes in this case amount to the refusal of records without a reasonable excuse.

35I will now address the specific reasons provided for the refusal of each set of records in dispute.

36Regarding the meeting minutes. I accept that these do not exist and that is the reason that they have not been provided to Mr. Rangan. The facts in this case show that the corporation was not clear in its 1st Response to Mr. Rangan, they did not specify which minutes Mr. Rangan could obtain, which he couldn’t and why. The response simply stated he was entitled to the minutes without clearly indicating that, while many of the requested minutes were available for examination, the minutes from December and January did not exist. MTCC 996 did, however, provide the minutes it had, and in its 2nd Response, which was sent to Mr. Rangan on the next available working day of the condominium manger, did provide Mr. Rangan with clarification as to why he did not receive all of the minutes requested. So, while MTCC 996 could have been more clear in its 1st Response and did fail to provide Mr. Rangan with all of the minutes he requested, I find they do have a reasonable excuse for not providing the records, which is that they do not exist.

37Regarding the SFC monthly financial statements. Although the boards 1st Response and 2nd Response are consistent in their explanation for why Mr. Rangan could not obtain a copy of the SFC monthly financial statements, it is clear from MTCC 996’s submissions that they were legitimately confused and unsure of if Mr. Rangan was entitled to the ‘draft’ or monthly financial statements of the SFC. MTCC 996 sought advice from the SFC and attempted to determine how the Tribunal had previously approached the issue of entitlement to shared facility monthly financial statements, which to date it has not specifically addressed. I find that based on the evidence that in these circumstances, MTCC 996 was not unreasonable in its refusal. So, although I have found that in this case Mr. Rangan is entitled to the records and MTCC 996 failed to provide them, I do not find that MTCC 996 refused them without a reasonable excuse.

38Regarding the bidding documents and quotes for the procurement of a new condominium management provider. The board’s 1st Response states that Mr. Rangan may not examine or obtain a copy of the bidding documents because “[i]t was a closed bidding process. Due to the confidentiality [of] information of the vendor’s, [the] corporation is not in the position to share this information.” In its 2nd response, MTCC 996 amends its position and indicates that they will allow Mr. Rangan to examine the documents he requests and cites an estimated fee for doing so.

39In light of MTCC 996’s position that it will allow Mr. Rangan to examine the bid documents and quotes, I am not making a determination on whether unsuccessful bids submitted during a procurement process are records to which an owner is entitled. The question before me is: did MTCC 996 refuse these records without a reasonable excuse? I find it did not. While MTCC 996 did in its 1st Response to Mr. Rangan refuse to provide the records, which may have been a refusal reasonably made, it very quickly amended its response offering Mr. Rangan the opportunity to examine them for a fee. So, while there was a slight delay in making the records available to Mr. Rangan (i.e., the five days between the 1st and 2nd Response) I do not find this delay to be an unreasonable refusal of the record.

40MTCC 996 is entitled under s.13.3 (8) of Ontario Regulation 48/01 (O. Reg 48/01) to charge a fee for the actual labour and delivery costs it incurs for making the records requested available. For completeness and to ensure that there is no ongoing dispute about this record, I will address the question of what a reasonable fee is to produce this record since there is some dispute over this fee. In it’s 2nd Response to Mr. Rangan MTCC 996 estimated a fee of $137.10 for preparing these records for examination, which it indicated Mr. Rangan could do at the management office. The fee breakdown is as follows:

i. Estimated number of pages to be printed: 57 at a cost of $0.30 per page, for a total of $17.10. ii. Estimated number of labour hours to produce the record: 3 at a cost of $40.00 or a total of $120.00 iii. Estimated delivery fee: $0

41However, in its submission to the Tribunal MTCC 996 provided a different estimated fee of $156.73. The breakdown of this fee is as follows:

i. Estimated number of pages to be printed: 67 at $0.20 per page for a total of $13.40 ii. Transit: 67 pages at 2 minutes per page at the rate of $40 hour for a total of $89.33 iii. Picking up and returning borrowed records: 1 hour at $40 per hour for a total of $40 iv. Redaction of records: 21 minutes at $40.00 per hour for a total of $14

42In the two estimates there is a discrepancy in the number of pages that will need to be printed or copied and the photocopying charge per page is also different. In this case, given that no explanation for the discrepancies has been provided, I find that MTCC 996 must charge for the lower page count (57 pages) and may only charge 0.20 per page for copying as per s.13.3 (8)3 of O.Reg 48/01. This amounts to a total of $11.40 for printing/photocopying costs.

43The estimate that was provided as part of MTCC 996’s submissions also contains line items for: picking up and returning the records; for redaction, and; “transit” – none of which were included in the original estimate sent to Mr. Rangan in the 2nd Response.

44In this case, I accept that there will be actual labour needed to produce the records for examination and that this labour will include time for copying the record in order to prepare it for redaction and redacting the record. I find no time is necessary for delivering or “transmitting” the records to Mr. Rangan as MTCC 996 has indicated Mr. Rangan can only examine the record, not obtain a copy of it. I find that two minutes per page is a reasonable estimate to produce the record for examination. At 57 pages this would amount to approximately two hours of labour. I accept that MTCC 996’s labour fee of $40 per hour is reasonable in this case. Thus, MTCC 996 may charge Mr. Rangan a total of $80.00 for labour to produce these records.

45Finally, in this case I find that MTCC 996 may not charge for the retrieval of the records. Although MTCC 996 has stated that it must pick up the borrowed records from a board member, they have provided no reliable evidence that it will take one hour to do so. They have not provided any details on the current physical location of the records, or why it will take one hour to retrieve them. They have not clearly demonstrated that this fee is related to the actual labour and delivery costs that the corporation will incur for making the requested record available.

Issue no 3: Should the Respondent be required to pay a penalty under s.1.44 (1)6 of the Act and in what amount?

46Section 1.44 (1)6 of the Act allows this Tribunal to award a penalty if it finds that the corporation has, without reasonable excuse, refused to permit a person to examine or obtain records.

47Although I have found that in this case MTCC 996 did fail to provide the SFC monthly financial statements and that there was a short delay in MTCC 996’s determination that Mr. Rangan could examine the bidding documents, I have found that neither of these amounted to a refusal without a reasonable excuse. Thus no penalty is appropriate in this case.

Issue no 4: Should any costs be awarded?

48Under s.1.44 (1)4 of the Act the Tribunal may make an order directing a party to the proceeding to pay the costs of another party to the proceeding. The CAT Rules of Practice and the CAT Practice Direction: Approach to Ordering Costs provide guidelines for the awarding of such costs.

49Under Rule 48.1 of the CAT’s Rules of Practice, if a case is not resolved by Settlement Agreement or Consent Order and a CAT Member makes a final Decision, the unsuccessful Party will be required to pay the successful Party’s CAT fees unless the CAT member decides otherwise. In this case, I find that Mr. Rangan is entitled to recover his filing fees because he was successful in some his claims and a Stage 3 – Tribunal Decision was necessary to provide clarity around some of the issues in dispute. I order MTCC 996 to pay Mr. Rangan $200 for filing fees.

C. ORDER

50The Tribunal Orders that:

1. MTCC 996 shall provide Mr. Rangan with the SFC monthly financial statements for the period of November 2021 – January 2022. They must do so within 30 days of the date of this decision and the records shall be provided at no charge.
2. MTCC 966 may charge a fee of $91.40 for Mr. Rangan to examine the bidding documents and quotes. Within 30 days of the payment of that fee, Mr. Rangan may examine the documents.
3. Within 30 days of the date of this decision, MTCC 996 shall pay Mr. Rangan costs in the amount of $200.

Nicole Aylwin

Member, Condominium Authority Tribunal

Footnotes

1. 1See Kulik v. York Region Condominium Corporation No. 772, 2020 ONCAT 27 at para 15; Russell v. York Condominium Corporation No. 50, 2021 ONCAT 103, at para 39; Taylor v. Toronto Standard Condominium Corporation No. 2689 - 2021 ONCAT 75 at para 28.