The CAT Dismisses "Minor" Case Without a Hearing
On March 18, 2021, the CAT released a decision on a motion made by a condominium to dismiss a case without a hearing. The owner made a record request for minutes of a board meeting and another document regarding a motion that was apparently made by a former director at the meeting for an investigation under the governance and ethics by-law. The condominium provided a copy of the minutes, but the minutes did not refer to the motion that was made by the former board member. The minutes provided by the condominium differed from the version received from the former board member who made the motion as the minutes did not include a reference to the motion. Both versions of the minutes were signed by the board.
Rule 17.1 of the CAT's Rules allows the CAT to dismiss a case at any time in certain situations, including where the case is about issues that are so minor that it would be unfair to make the responding party go through the CAT process. The condominium made a motion to have the CAT do so in this case.
The owner argued that the official minutes should include reference to the motion and the supporting documents prepared by the former director regarding the motion should be attached. He argued the minutes were not adequate as they did not record "all proceedings and motions" even the ones that failed. The condominium argued that the issue was so minor that it would be unfair to the condominium to continue with the hearing because the owner was already in possession of both copies of the minutes, as well as the supporting documents that he wanted attached to the minutes.
The CAT's member reviewed the requirement for the condominium to keep "adequate records" and noted the term "adequate" is not defined in the Act. The member referred to previous case law where the term was found to mean the records must permit the condominium to fulfill its duties and obligations. The accuracy of a record is a component of its adequacy.
The CAT member concluded that the minutes did not need to refer to a motion that was not seconded or discussed as no business was transacted by the Board:
There is no basis on which to conclude that a background document for an item that was not on the board’s agenda...was not discussed and therefore was not accepted by the board, should either form part of the minutes or be retained as a corporate record.
The member further stated:
If the motion in question had been seconded and discussed...the issue of accuracy and therefore the adequacy of the “official” version of the minutes provided to the Applicant by the Respondent would merit hearing evidence. However, in this case, no business was transacted and I conclude that the substance of the difference between the two versions, that is the recording of a motion that was not seconded, comprises a minor issue which does not warrant making the Respondent go through the hearing process. Whether every item raised at a board meeting that results in no transaction of business and no decision on any action should be recorded in its minutes is a decision for the board to make. Therefore, I dismiss this case.
Notwithstanding the member's decision to dismiss the case, she advised the condominium to rectify the issue by amending the minutes to say that an amendment was made to them.
Interesting case. It is not clear how there came to be two separate sets of minutes, but is sounds like the minutes were distributed to the board and former director for review prior to their approval at a meeting. The draft minutes were then provided by the former director to the owner requesting the minutes. The minutes were later amended to remove the motion made by the former director. This is purely speculation as I was not involved in this case. That said, I have seen similar issues with draft minutes being circulated before they are amended and approved. One way to avoid this situation would be to add a "draft" watermark to the minutes and not sign them until they are approved at a board meeting. If the minutes are later amended a note should be added to show the amendment that was made and the date it was made.