- Records Required By The Strata Property Act
- Individual Privacy Concerns
- Access To A Strata Corporation’s Records
The Strata Property Act dictates what records a strata corporation must keep and regulates access to those records. To the extent a strata corporation’s records involve personal information, the provincial Personal Information Protection Act adds certain privacy requirements.
Records Required By The Strata Property Act
Section 35(1) of the Strata Property Act says a strata corporation must prepare all of the following records:
- Minutes of general meetings and council meetings, including the results of any vote. 1
- A list of council members.
- A list of owners with their strata lot addresses; mailing addresses, if different; strata lot numbers as shown on the strata plan; parking stall numbers, if any; and unit entitlements.
- A list of names and addresses of mortgagees who have filed a Mortgagee’s Request for Notification (Form C) under section 60 of the Act.
- A list of names of tenants.
- A list of assignments of voting or other rights by landlords to tenants under sections 147 and 148 of the Act.
- Books of account showing money received and spent and the reason for the receipt or expenditure.
- Any other records required by the regulations.
The regulations require a strata corporation to keep a lengthy list of other records. 2 Appendix C contains a list of all the records a strata corporation must keep, together with the minimum periods of time they must be kept.
Among other things, the regulations require that the strata corporation also keep a record of each council member’s telephone number, or some other method by which the council member may be contacted at short notice, as long as the method is not prohibited in the bylaws.
Individual Privacy Concerns
Privacy considerations directly affect a strata corporation’s record keeping activities.
The provincial Personal Information Protection Act regulates how a strata corporation may collect and use personal information. 3 Personal information means, in part, “information about an identifiable person.” 4 This includes such information as a person’s name, age, home address, home telephone number, ethnic origin, sexual orientation, marital status, occupation, finances and medical information. There is some personal information to which the Personal Information Protection Act does not apply, such as personal information that can be accessed under the Freedom of Information and Privacy Act 5 or that is contained in court documents. 6
The Personal Information Protection Act came into force on January 1, 2004. The Act applies to every strata corporation. The Act governs all personal information held by a strata corporation, unless otherwise exempted by the statute. 7 The Personal Information Protection Act sets out rules for the collection, use, disclosure and care of personal information.
The Personal Information Protection Act requires that each strata corporation designate one or more individuals to be responsible for ensuring that the organization complies with the Act. This person is sometimes informally called a “privacy officer”. Typically, a strata corporation designates its strata manager or a strata council member as the privacy officer.
The Office of the Information and Privacy Commissioner (the “Privacy Commissioner”) enforces the statute. In 2009, the Privacy Commissioner released its Privacy Guidelines for Strata Corporations and Strata Agents. At the date of this writing, the Guidelines are available online at the Privacy Commissioner’s website. 8 According to the Privacy Guidelines, the Personal Information Protection Act gives an owner or tenant the right to: 9
- Be told the purpose for, and consent to, a strata corporation’s collection, use or disclosure of the individual’s personal information;
- Expect a strata corporation to collect, use or disclose personal information for purposes that are reasonable and appropriate;
- Know who in the strata corporation is responsible for protecting personal information;
- Expect a strata corporation to protect personal information by taking appropriate security measures;
- Expect that the personal information a strata corporation uses is accurate and complete for the purpose for which it was collected;
- Request access to the individual’s personal information held by the strata corporation;
- Request that the individual’s personal information be corrected; and
- Have the individual’s complaint about how a strata corporation handles personal information addressed.
At the same time, the Privacy Guidelines emphasize that the Personal Information Protection Act requires a strata corporation to: 10
- Designate someone to be accountable on the strata corporation’s behalf for compliance with the Personal Information Protection Act;
- Obtain the consent of an owner or tenant before the corporation collects, uses or discloses personal information (except in specified circumstances where consent is not required or is implied);
- Tell an owner or tenant upon request why personal information is being collected, how it is being used and to whom it has been disclosed;
- Use, disclose and retain personal information only for the same reasonable purposes for which it was collected (unless fresh consent is obtained for a new use or disclosure);
- Ensure that personal information the corporation collects is accurate and complete for the purpose for which it was collected;
- Respond to requests for personal information completely and without delay;
- Have personal information policies that are clear, understandable and readily available; and
- Destroy, erase or make anonymous personal information about an owner or tenant that the strata corporation no longer needs for the purpose for which it was collected and for legal or business purposes.
Privacy law is an emerging legal field in the information age. This chapter summarizes the principal features of the Personal Information Protection Act that affect a strata corporation’s record keeping activities. For advice about a specific situation, the reader should consult a strata lawyer.
Collecting Personal Information
Under the Personal Information Protection Act, a strata corporation should only collect the minimum amount of personal information reasonably necessary to fulfill the corporation’s legal obligations, including those under the Strata Property Act.
As a general rule, a strata corporation may only collect personal information about an indiviual with that person’s prior consent. 11 When collecting personal information about an individual, the strata corporation must tell the individual, verbally or in writing, the purpose for collecting the information. Upon request by that individual, the strata corporation must provide the name and contact information for the corporation’s privacy officer, being the person who is able to answer the individual’s questions about the collection of the information. 12
A person’s consent may be express or implied. For instance, an owner might expressly permit a strata corporation to collect personal information so the corporation can deduct monthly strata fees from the owner’s bank account. Implied consent occurs when an individual voluntarily provides information to the strata corporation, knowing that the corporation will use the information for a certain purpose. 13
Where There Is No Consent
The Personal Information Protection Act permits collection of personal information without the individual’s consent in some situations, including the following. 14
A strata corporation does not require an individual’s prior consent where collection of the information is required or authorized by law. For example, the Strata Property Act requires a strata corporation to prepare and keep a list of owners with their strata lot addresses. 15 The Privacy Guidelines for Strata Corporations and Strata Agents recommend that if, for any reason, a strata corporation requires persons to supply additional personal information over and above that required by the Strata Property Act, the corporation should pass a bylaw requiring the collection of that information. The bylaw should also state the reason for collecting the personal information in question. By way of examples, the Guildelines suggest that a strata corporation may pass a bylaw requiring owners and tenants to provide the following information: 16
- Banking or credit card information to allow pre-authorized payments to pay strata fees;
- Information regarding pets in a suite;
- Personal information collected through the use of video surveillance equipment;
- Names of all persons living in a suite; and
- Information created by a computerized access key fob system, if the activity of the fob is being collected and/or recorded by the strata corporation.
A strata corporation may also collect an individual’s personal information without consent in an emergency. This may occur where collection of the personal information is clearly in the interests of the individual, but consent cannot be obtained in a timely way. Alternatively, this may occur where the collection is necessary for the individual’s medical treatment, but the individual is unable to give consent.
A strata corporation may collect an individual’s personal information without consent where it is reasonable to expect that first obtaining consent would compromise the accuracy of information required for a lawful investigation or proceeding. For instance, a strata corporation may suspect that an owner is living with a child in the owner’s strata lot, contrary to an age restriction bylaw. To carry out its investigation, the strata council may collect relevant personal information about that owner from other witnesses, all without the consent of the owner in question. This is especially so where obtaining consent would likely endanger the availability of the information. 17
A strata corporation may also collect an individual’s personal information without consent where that information is reasonably necessary for the corporation to collect a debt from, or pay a debt to, that individual.
In addition, a strata corporation may collect an individual’s personal information without consent where that information is already publicly available through one of the following sources: 18
- In a telephone directory or through Directory Assistance. For instance, a strata corporation may collect an owner’s home telephone number without consent if that number is published in a telephone book that is publically available; 19
- In a professional or business directory, listing or notice that is available to the public, (where the individual could, if desired) refuse to have his or her personal information included in that directory);
- In a registry to which the public has a right of access, if the personal information is collected by law; or
- In a printed or electronic publication that is available to the public, including a magazine, book or newspaper in printed or electronic form.
Retaining Personal Information
A strata corporation must protect personal information in its custody or under its control. This means that a strata corporation must make reasonable security arrangements to prevent unauthorized access, collection, use, disclosure, copying, modification or disposal or similar risks. 20 According to the The Privacy Guidelines for Strata Corporations and Strata Agents, a strata corporation’s safeguards should correspond to the sensitivity of the personal information. The Privacy Guidelines suggest these security measures: 21
- Locking file cabinets and areas where personal information is stored;
- If there is a strata manager’s office or strata council meeting room, ensuring that a “clean desk” policy is followed. In other words, when records containing personal information are not being used, they are stored in a locked filing cabinet as opposed to being left on a desk;
- Allowing only authorized individuals access to files;
- If personal information is stored on a portable storage device, such as a laptop computer, that device should have a wire cable and lock attaching it to something solid such as a heavy desk, which prevents someone easily walking off with it. When the laptop is not being used, it should be stored in a locked cabinet;
- Ensuring that all personal information is stored on an encrypted personal computer or other electronic storage device. If the strata corporation wishes to discard a computer or any other memory storage device containing an individual’s personal information, the device should be physically destroyed or completely erased using the appropriate, commercially available data-wiping software;
- Shredding papers containing personal information rather than just placing them in a garbage can or recycling bin;
- Developing and implementing confidentiality policies for members of the strata council;
- Ensuring that strata council members understand that the personal information they are privy to is only to be used for strata corporation business and not for sharing with their neighbours or others.
If a strata corporation uses an indiviual’s personal information to make a decision that directly affects the individual, the organization must retain that information for at least one year after using it so that individual has a reasonable opportunity to obtain access to it. 22 For instance, where a strata corporation collected personal information to decide if an owner breached a bylaw, the corporation must keep that information for at least one year from the date of the decision. 23
A strata corporation must destroy or securely dispose of an individual’s personal information, as soon as it is reasonable to assume that the purpose for which that information was collected is no longer being served by retention of the information and retention is no longer necessary for legal or business purposes. 24
Access To A Strata Corporation’s Records
The Strata Property Act gives owners, certain tenants, buyers and mortgage lenders access to the strata corporation’s records when certain criteria are met. To the extent those records contain personal information, the Personal Information Protection Act also imposes restrictions.
Access Under The Strata Property Act
Section 36(1) of the Strata Property Act guarantees access to virtually all of the strata corporation’s records to:
- an owner,
- a tenant who has received an assignment of a owner’s right to inspect and copy records, 25 and
- people authorized in writing by an owner or tenant of the type described immediately above.
Upon request by an owner, tenant with access rights, or delegate authorized in writing, the strata corporation must make the records available for inspection and provide copies of them. Section 36(3) of the Strata Property Act and section 25 of the Interpretation Act, when read together, require the strata corporation to comply with the request within 15 days, unless the request is for access to the bylaws and rules, in which case the corporation has eight days to comply. 26
Normally, a strata corporation must provide a copy of its financial statements in prescribed form when giving notice of an annual general meeting (AGM). 27 If, however, a strata corporation meets certain requirements, it may instead provide a summary of its financial information with the notice. 28 If the strata corporation has issued a financial summary, instead of the actual financial statements, with the notice, any person entitled to receive notice of the AGM may, before the meeting, request a copy of the financial statements. In that case, the strata corporation must immediately give a copy of the actual financial statements to that person.
The strata corporation must not charge any fee to an owner, a tenant with access rights, or an authorized delegate, for inspecting the strata corporation’s records. Although the strata corporation can charge such persons for photocopies, the corporation must not charge more than 25 cents per page. The strata corporation may refuse to supply copies until the copy fee is paid. 29
A strata manager who represents a strata corporation is bound by the same restrictions. The strata manager must not charge an owner, a tenant with access rights, or an authorized delegate, any fees in excess of those permitted by the Act. If the strata manager wishes to recover any costs associated with this service, the manager must build that charge into the management fee that the manager charges to the strata corporation.
Former Owners and Tenants
The Strata Property Act also guarantees certain access rights to a former owner, or in some cases to a former tenant, or to a person authorized in writing by the former owner or tenant. To qualify for access as a former tenant, the tenant must have received an assignment of a landlord’s right to inspect and copy records under the Act. 30 The statute guarantees the former owner or tenant, or his or her delegate, access to records of the strata corporation that relate to the period during which the former owner or tenant was an owner or tenant, regardless of the date when the record was actually created. 31 To the extent that a former owner or tenant, or his or her delegate, are entitled to access, the provisions for viewing and copying the strata corporation’s records are the same as described above for an owner or tenant.
Access to Legal Opinions
Under the Strata Property Act a strata corporation must permit an owner, a tenant with access rights, or in either case their delegate authorized in writing, to inspect and copy legal opinions obtained by the corporation, subject to some exceptions. 32
Exceptions: Where The Strata Corporation May Deny Access
There are several exceptions to the strata corporation’s obligation to provide an owner, or certain tenants and others, access to its legal opinions.
First, if an owner is involved in a lawsuit with the strata corporation, including an owner who is the developer, the Strata Property Act prohibits that owner from access to the strata corporation’s legal opinions or other information relating to the lawsuit. Nor is that owner entitled to attend those portions of general meetings or strata council meetings at which the lawsuit is discussed. 33
Second, at common law, where a strata corporation obtains legal advice in confidence from the corporation’s lawyer in a matter that may ultimately result in litigation, that opinion is subject to solicitor-client privilege. The privilege belongs to the client, being the strata corporation. At common law, if the legal opinion obtained by the strata corporation is privileged, the opinion is immune from disclosure without the strata corporation’s consent or court order.
Depending on the circumstances, giving a person access to a strata corporation’s legal opinions may pose problems for the corporation. In 2009, in Azura Management (Kelowna) Corp. v. Strata Plan KAS 2428, the Supreme Court of British Columbia provided the following guidelines regarding access to a strata corporation’s legal opinions. 34
Where There Is A Lawsuit
In Azura Management (Kelowna) Corp. v. Strata Plan KAS 2428, an owner sued the strata corporation for, among other things, an order requiring the corporation to provide copies of certain legal opinions. 35
Before the lawsuit, the strata corporation apparently obtained six legal opinions from a certain lawyer. Before launching the lawsuit, the owner asked the strata corporation for the six legal opinions. In response, the strata corporation’s legal counsel advised the owner that they would review those legal opinions to determine whether the opinions were subject to solicitor-client privilege. The strata corporation’s legal counsel noted that if the strata corporation commissioned any portions of those legal opinions to respond to that owner’s initiatives, legal counsel would regard those portions as privileged. If so, the strata corporation would likely not release those opinions without court order.
In the lawsuit, the strata corporation claimed solicitor-client privilege over the legal opinions. Pending the court’s review of the legal opinions, the court ordered the opinions sealed in the records of the court. After reviewing the documents, the court gave the owner altered versions of the legal opinions that excluded those portions subject to solicitor-client privilege.
When ordering the release of a legal opinion to an owner, the court may impose conditions. In Azura Management, the court said it would be inappropriate for an owner to have unrestricted access to legal opinions, even where those opinions do not involve that particular owner. It would be too easy for one owner to request a legal opinion and then pass it along to the owner who is involved in the litigation. In Azura, the court prohibited the owner, and the owner’s legal counsel, from sharing the relevant portions of the legal opinions with any other person, regardless whether that person was a member of the strata corporation.
In Azura Management, the court noted that the Strata Property Act only restricts an owner’s access to a legal opinion where there are actual court proceedings. 36 Where there is a dispute between a strata corporation and an owner that does not involve litigation, the restriction does not apply.
Despite the absence of a lawsuit, the court found that a strata corporation may still withhold a legal opinion from an owner to assert a common law claim of solicitor-client privilege over the document. Where the strata corporation claims solicitor-client privilege over a document in these circumstances, the court said the corporation should seek the court’s ruling whether, and to what extent, the corporation must provide the document to the owner with whom the dispute has arisen.
Time Period For Providing Access
Where a strata corporation provides a legal opinion to an owner or other eligible person, the Strata Property Act requires the corporation to deliver it within fifteen days, as described earlier in this chapter.
In the Azura Management case, the court found this fifteen-day time frame unrealistic. Following an owner’s request for a legal opinion, the strata corporation will likely have to seek legal advice whether, and to what extent, a legal opinion is subject to solicitor-client privilege. The strata corporation may wish to apply to court to substantiate the corporation’s right to withhold the document and to confirm the privileged nature of the legal opinion. Typically, these steps will take more than fifteen days.
How To Handle Communications With The Strata Corporation’s Lawyer
As a general rule, a strata council should presume that all communications with the strata corporation’s lawyer are subject to solicitor-client privilege until the corporation’s lawyer advises otherwise. In practice, this means that a strata council best serves the strata corporation’s interests by keeping its communications with the corporation’s lawyers confidential among strata council members. Before releasing the information to the owners collectively, the strata council should first confirm with the strata corporation’s lawyer whether and to what extent the information is privileged, what portion may be released generally, and when it should be released.
If an owner, a tenant with access rights, or an authorized delegate, requests access to any of the strata corporation’s legal opinions, the strata council should immediately consult the corporation’s lawyer for advice. In the meantime, the strata council should tell the person who made the request that, since the legal opinion may be subject to solicitor-client privilege, council has sought legal advice.
If the strata corporation’s lawyer advises the strata council to decline the request for access to a legal opinion because it is subject to solicitor-client privilege, the strata council should follow that advice. The strata council should explain to the person who made the request the reasons for refusing to provide access to the legal opinion.
Since the legal opinion and its solicitor-client privilege belong to the strata corporation, the eligible voters at a general meeting still retain the right, by a majority vote under section 27(1) of the Strata Property Act, to direct council to provide the opinion to the person who made the request.
Buyers are not yet owners, so they are not members of the strata corporation. As such, buyers do not have direct access to the strata corporation’s records.
Who is a Buyer?
Section 1 of the Strata Property Act defines the term purchaser:
1(1) “purchaser” means a person . . . who enters into an agreement to purchase a strata lot or to acquire a strata lot lease in a leasehold strata plan . . . but to whom the strata lot or strata lot lease has not yet been conveyed or assigned.
This definition is broad. It does not require the buyer of a strata lot to have an unconditional contract of purchase and sale before he or she qualifies as a buyer under the Strata Property Act. For example, a buyer typically enters a contract of purchase and sale for a strata lot subject to, among other things, approval of the strata corporation’s bylaws. The contract at that point is conditional because it depends on the buyer removing the subject clause by approving the bylaws, or otherwise waiving this requirement. Even though the buyer’s contract is conditional, the buyer is still a purchaser under the Act.
Buyers obtain access to the strata corporation’s information two ways: formally and informally.
Buyers typically take advantage of opportunities under the Strata Property Act to require a strata corporation to certify particular information. Buyers usually obtain the following certificates.
Section 59 of the Strata Property Act entitles an owner, a buyer, or a person authorized by an owner or buyer, to request an Information Certificate from the strata corporation in Form B, being the form required by the regulation. The form is found among the forms in the regulations. 37 The certificate must disclose all of the following concerning the strata corporation, and the strata lot for which the request is made, as at the date of the certificate:
- the monthly strata fees payable by the owner,
- any amount the owner owes the strata corporation, other than disputed amounts paid into court or to the strata corporation in trust under section 114 of the Act,
- any agreements under which the owner takes responsibility for expenses relating to alterations to a strata lot, the common property or the common assets,
- any amount the owner is obligated to pay in the future for a special levy that has already been approved, and the date by which the payment is to be made,
- any amount by which the expenses of the strata corporation for the current fiscal year are expected to exceed the expenses budgeted for the fiscal year,
- the amount in the contingency reserve fund (“CRF”) minus any expenditures which have already been approved but not yet taken from the fund,
- any amendments to the bylaws that are not yet filed in the Land Title Office,
- any resolution passed by a 3/4 or unanimous vote that is required to be filed in the Land Title Office but that has not yet been filed in the Land Title Office,
- any notice that has been given for a resolution that has not been voted on, if the resolution requires a 3/4 or unanimous vote, or deals with an amendment to the bylaw,
- any court proceeding or arbitration in which the strata corporation is a party, and any judgments or orders against the strata corporation,
- any notices or work orders received by the strata corporation that remain outstanding for the strata lot, the common property or the common assets,
- the number of strata lots in the strata plan that are rented,
- any other information required by the regulations.
When selling or buying a strata lot, there is often a