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TOPIC:
#18968
NON –CONCURRENT BOARD TRANSACTING : Catch 22 dilemma at Tribunal for records requester 2019/05/31 11:47  
Formal Board Minutes state that a Board decision ( gas contract renewal ) ALREADY had been transacted by email despite the Ontario Condominium Act 1998’s section 32 ( excerpted below ).

So what happens eventually at the Condo Tribunal if this "off-lining" by decision-makers might also have been central to a Tribunal complaint about records-denial / breach of record-keeping ?

Denied his requested "transacting" / approval-deciding Directoral e-mail records - withheld by the Board from time to time as "mere agreement to agree" or "our Minutes may have been wrong" or "no supporting documents exist anyway " etc - the denied "records requester" next applies to Ontario's Condo Tribunal.

And fails.


The official Board Minutes candidly present that Board business had been transacted BY E-MAIL between the Directors outside the Meeting - ie potentially non-concurrent - instead of at the formal Board Meeting as lawfully required by the Ontario Condo Act's section 32 !

Thus : " there’s NO record nor supporting documents to disclose at all." . . . or "It’s a fait accompli, so what !" . . or "We already agreed to agree" . . . .

From Ontario's Condominium Act 1998 https://www.ontario.ca/laws/statute/98c19

" . . . Conduct of business

32 (1) Subject to subsection 42 (5), the board of a corporation shall not transact any business of the corporation except at a meeting of directors at which a quorum of the board is present. 1998, c. 19, s. 32 (1).

The complaint here gets dismissed but the Applicant ironically gets a $200 award for late response to his requests. . .

What's this mean ?

Ruled NOT disclosurable by lawyer Tribunal Member Marc Bhalla, are Minute-confessed business – transacting Directoral EMAILS - seemingly flat out at odds with the Condo Act 1998’s section 32 .

The Minutes of later formal concurrent Meeting, cite such contracting decision as fait accompli made by email. Was it merely sloppy Minute-taking ?

Member Bhalla incisively notes what's NOT in those Minutes: they pointedly DO NOT RECITE that any contract approval protocols occurred ( such as carried Motion to approve etc . . .).

An awkward scenario to consider punishing, because without by-lawed concurrent technology for remote but concurrent Board meeting eg teleconference, getting volunteer Directors together in person monthly can be difficult
.

How much was disclosurable ? Member relevantly also opines that imbedding "rationales" / "considerations" for a decision, is technically NOT a compulsory component to include in Board Minutes.

Does this mean that ONCAT 's mandate should be centrally "records access" compliance & NOT MORE ?

That central to the Tribunal's mandate is not mis-governance that may surface & should be addressed in other venues ?

That IF - IF - the alleged act of misgovernance MIGHT NOT HAVE BEEN central to frustrating an owner's rights of disclosure, should a Tribunal remedy even be available ?


( A bottom line biggy : here the respondent's Directors have to argue that either we violated the Condo Act or that our Minutes were false. The member also effectively discards the credibility of the sole testifying Director's supporting testimony ! )

Where should the Tribunal go where there's been a Condominium Act breach which arguably masks or impairs the record. NOT an easy answer.

Maybe more to come . . .

Kai Sin Yeung v MTCC # 1136 2019 ONCAT 11 issued May 13/19 http://canlii.ca/t/j0c7j
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#18969
Was a law breach enough to trigger a Condo Tribunal remedy about Board records ? 2019/06/01 12:14  
and so the comments have begun . . .

Lawyer Rod Escayola ( Gowling WLG ) May 29/19 http://condoadviser.ca/2019/05/can-owners-access-emails-exchanged-between-condo-directors/condo-law- blog-Ontario
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