CONDOMINIUM AUTHORITY TRIBUNAL
DATE: January 2, 2025
CASE: 2024-00390R
Citation: Puxty v. Frontenac Condominium Corporation No. 57, 2025 ONCAT 2
Order under section 1.44 of the Condominium Act, 1998.
Member: Anne Gottlieb, Member
The Applicant,
Ben Puxty
Self-Represented
The Respondent,
Frontenac Condominium Corporation No. 57
Represented by Cheryll Wood, Counsel
Hearing: Written Online Hearing – July 30, 2024-December 11, 2024. Video Conference Hearing – November 6, 2024, and November 11, 2024.
REASONS FOR DECISION
A. INTRODUCTION
[1] Mr. Puxty is a unit owner of Frontenac Condominium Corporation No. 57, (“FCC 57”). This case deals with an estimate for fees for the production of records contained in two records requests. On March 7, 2024, Mr. Puxty submitted a Request for Records (“Request 1”) which included a request for non-core records. On April 5, 2024, FCC 57 provided a Board Response to Request for Records (“Response 1”), which specified a quote for fees to produce the non-core records requested by Mr. Puxty. Mr. Puxty disagreed with the estimate to produce the auditor’s contract/letter of engagement for 2022 and 2023, and this was an issue for determination in this application.
[2] Mr. Puxty also submitted a Request for Records dated May 17, 2024 (“Request 2”). Request 2 included five categories of non-core records spanning up to ten years of records. A Board Response to Request for Records of June 16, 2024 (“Response 2”) identified proposed fees for the production of these non-core records. Mr. Puxty claims that the estimated fees are not reasonable. He asks the Tribunal to order the corporation to provide the non-core records at the amount that he is willing to pay for such records. He also requests an order for a penalty and asks that his fees before this Tribunal be reimbursed.
[3] FCC 57 requests the Tribunal to find that the estimates provided are reasonable and that the Applicant is required to pay those amounts to access the records. It further asks for its legal costs in this matter, on a full indemnity basis. FCC 57 has submitted a bill of costs for its legal services.
[4] For the reasons set out below, I find that FCC 57 provided a reasonable estimate for fees to produce the records requested with regards to bank statements, unaudited monthly financial statements and board meeting minutes, except for a $100.80 photocopying charge. Overall, the estimate may have been higher than Mr. Puxty was willing to pay for the records, but that does not make it unreasonable.
[5] With respect to the year to date unaudited financial statements for 2017-2022, it appears that Mr. Puxty requested or intended to request a different set of financial records than those the condominium corporation understood to be part of Request 2. FCC 57 provided an estimate for the records it believed he requested. These are not the records he wants. Mr. Puxty states he wants financial statements in accordance with s. 66 of the Condominium Act, 1998 (the “Act”). I make no order with respect to these records. If Mr. Puxty remains a unit owner entitled to request records, he may submit a new request for the financial records pursuant to s. 66 of the Act.
[6] Mr. Puxty also asked for a detailed itemized statement verified by a third party who can vouch for the hours and time it takes FCC 57 to produce the records. I decline to make such an order. There is a procedure outlined in the Act for refunding monies when there is an overcharge, based on the estimate of fees to produce records. Mr. Puxty is aware of this provision and acknowledges that he was given such a ‘refund’, by FCC 57, for a past records request.
[7] I decline to award Mr. Puxty the fee he paid to bring this case to the Tribunal and no penalty is awarded. FCC 57 has been largely successful at this Tribunal. It submitted a detailed bill of costs and seeks full indemnity. I will not award full indemnity, but I will make a cost award in the amount of $1000 to be paid by Mr. Puxty, for reasons outlined below. I note that the Tribunal was informed that Mr. Puxty’s unit has been sold conditionally. I therefore order that the payment of the penalty be made within two days of the issuance of this decision. If Mr. Puxty ceases to be a unit owner, he is not entitled to the records.
B. BACKGROUND
[8] This is not the first case before the Tribunal involving these parties. Mr. Puxty has made several requests for records from the condominium corporation and a prior case before the Tribunal was dismissed[1].
[9] Mr. Puxty has challenged the storage location of the condominium’s stored records; the method of retention of these records; the costs for travel to the storage facility to retrieve the older records requested; the hourly fee the manager proposed; the number of hours for the redaction of records; and the method of redaction proposed by the management. These issues are indicative of Mr. Puxty’s dissatisfaction with the condominium management and governance practices.
[10] In Request 1, Mr. Puxty sought the contract/engagement letter for the auditor appointed by FCC 57 in 2022 and 2023. This was noted as an item outstanding on the Stage 2 Summary and Order. On November 6, 2024, (the first day of the video recorded testimony), it became apparent to Counsel for the Respondent that the auditor’s letter of engagement for 2022 and 2023 had not yet been provided to Mr. Puxty. The engagement letter for the auditor for the year 2022 and 2023 was uploaded by FCC 57 to the CAT ODR system a few days later. This issue was resolved in Stage 3 – Tribunal Decision, at no cost to Mr. Puxty. There is no order to be made regarding this record.
C. ISSUES
[11] I have considered all the evidence and submissions of both parties. I will only refer to matters that are relevant to the issues to be decided. The remaining issues to be addressed in this case include:
1. Are the fees proposed by FCC 57 to produce the records requested, reasonable? The outstanding records for which fees were quoted are:
i. Detailed Monthly Bank Statements of Reserve Funds with transactions (2015-2024);
ii. Detailed Monthly Bank Statements of General Funds with transactions (2015-2024);
iii. Monthly Unaudited Financial Statement Based on 2017-2022 Management Contract (2017-2022);
iv. Year-to-date Itemized Unaudited Financial Statement Based on 2017-2022 Management Contract (2017-2022); and,
v. All Board Meeting Minutes (2015-2022).
2. Has there been a refusal to provide the records without a reasonable excuse, and if so, should a penalty be awarded?
3. Should there be an award of costs to either party?
D. ANALYSIS
Issue no. 1: Are the fees proposed by the Respondent to produce the records requested reasonable?
[12] With respect to a Request for Records made by an owner, s. 13.3 (8) and (9) of Ontario Regulation 48/01 (“O. Reg.48/01”) provide a framework for an estimate of labour and photocopying costs for production of records. Both Response 1 and Response 2 provided such an estimate for each category of records requested by Mr. Puxty.
Monthly Bank Statements of Reserve Funds (2015-2024) and Monthly Bank Statements of General Funds (2015-2024)
[13] Request 2 asked for monthly bank statements for both the reserve fund and general fund for 10 years. FCC 57 provided an estimate of 720 pages for each category of these bank statements. This was based on the number of years of records and an average of three pages per month. It included a photocopying charge of $0.20 per page equaling $144. There was an estimate of twelve hours of labour for retrieval of the records and redaction, at a cost of $30/hour for a total of $360 for labour charges. The total quoted for all the reserve fund bank statements and general fund statements was $1008 ($504 x2 = $1008 for both sets of bank statements).
[14] Mr. Puxty argued that banking records are available electronically from banks, without a fee, going back seven years. FCC 57 contacted the TD bank where it currently holds its accounts. The condominium corporation was told that bank statements were available electronically from the bank at a cost of about $15/year for each account. Additional costs would be incurred for copies of cheques. The bank records would only go back seven years. The condominium corporation indicated that costs would likely be similar at Scotiabank, where FCC 57 used to bank.
[15] I agree with FCC 57 that s. 55 (1) of the Act creates an obligation for the retention of records for a certain period of time, and that s. 55 (2.1) states that these records can be maintained in hard copy or electronic format. There is no requirement for them to be stored electronically. I note that 10 years is beyond the retention period required by the Act for this category of record.
[16] The TD bank indicated a $15 charge for each of seven years, which totals $105. There would still be three years of bank statements (2015, 2016 and 2017) which the bank does not retain. That totals 36 months and an additional $21.60 to be added to the $105 quoted by the bank. I find that the $144 estimate made by FCC 57 in Response 2 is reasonable. It is sufficiently close to the $126.60 that would be the combination of ordering the statements from the bank and photocopying the remaining statements. I find that this is a reasonable estimate.
[17] FCC 57 has bank statements available. The current years are available in electronic form and hard copies are available in storage. FCC 57 is willing and able to retrieve these records. It requires a trip to the storage facility, which is not on site, but is a short driving distance away. It would require a search through boxes corresponding to the various years in the storage location. These are all reasonable steps. These steps would be necessary in any case for years 2015, 2016 and 2017, which the banks do not retain. FCC 57 cited the case of Missal v. York Condominium Corporation No. 504 [2], to support the proposition that it is reasonable for an owner to pay the costs associated with retrieving records from storage. I agree that this can be taken into consideration when estimating time for labour costs.
[18] With respect to the number of hours FCC 57 proposed for labour, Mr. Puxty challenges the need for FCC 57 to review and redact the banking records. He states that redactions are not necessary. This is not necessarily the case. The condominium corporation is entitled to review the bank statements and redact any information that it would be entitled to redact under s. 55 of the Act. For example, unit information may be included on a bank statement which would require review and redaction.
[19] When a record is redacted, there is a requirement per s. 13.8 (1) (b) of O. Reg 48/01 that a copy of each record includes a statement explaining the reason for each redaction and the statutory exclusion that is being relied upon for the redaction (i.e., which exception under s.55 (4) of the Act). If banking statements are redacted, FCC 57 is required to provide a written explanation of any such redactions to Mr. Puxty, explaining the reason for each redaction.
[20] Tribunal decisions have accepted the rate of $30/hour as a reasonable rate for labour charges in this type of case. Ms. Kermeen, the manager for the condominium corporation also pointed out that services for retrieving and redacting records did not form part of the management contract, and therefore such services were actually charged to the condominium corporation at a rate of $90/hour to the condominium corporation. I find that a charge to the Applicant of $30/hour is a reasonable rate.
[21] I find that one hour per year, is a fair amount of time to review bank statements, and an additional two hours of time to retrieve the files and complete a statement of redaction, if required, is also reasonable. For all these reasons, I find that the fees estimated by FCC 57 for each category of bank statements are reasonable. If Mr. Puxty wishes these records, he may pay $504 for each category of bank statements.
Monthly Unaudited Financial Statement 2017-2022
[22] FCC 57 provided an estimate which included 432 pages for monthly unaudited financial statement for the years 2017 to 2022. This was based on the number of years requested. Ms. Kermeen testified that she understood Mr. Puxty to be requesting the approved financial records that are submitted monthly to the board of directors for approval, which included the budget comparison, and bank requisitions and trial balances. She explained that there would be approximately six pages for each of the twelve months for six years (72 months). The estimate included a photocopying charge of $0.20 per page equaling $86.40. There was also an estimate of twelve hours of labour for redaction, at a cost of $30/hour for a total of $360 for labour charges. The total quoted for these financial statements was $446.40.
[23] As to the estimate of time required for labour costs, the Respondent cited Lochner v. Toronto Standard Condominium Corporation No. 1953 [3] as an example where the Tribunal found that a large number of hours of labour estimated to provide documents was a reasonable estimate given: the number of years requested; where the documents were located; the time it took to retrieve the documents; and the time it took to compile and redact the records as necessary. I accept this approach.
[24] The condominium manager explained what was involved in satisfying Mr. Puxty’s records request. She detailed the steps relating to retrieving, reviewing and redacting these records. I find that two hours per year is a reasonable estimate of time to review and redact these financial statements for a six-year period. I accept the estimate of $446.40 as reasonable for producing the monthly unaudited financial statements from 2017-2022. Mr. Puxty shall pay this amount if he wishes to obtain these records.
Year-to-date Itemized Unaudited Financial Statement 2017-2022
[25] In Response 2, FCC 57 provided the same estimate for the year-to-date financials as for the monthly unaudited financial statements discussed above. Mr. Puxty explained in his submissions that he wanted the financial statements set out in s. 66 (3) of the Act. This was not the understanding of the condominium corporation when they provided Response 2.
[26] Ms. Kermeen explained her understanding of Request 2 and described in detail how the estimate was calculated. FCC 57 indicated in its closing submissions that the basis for its estimate for this category of records was not s. 66 records. I accept the testimony of the condominium manager as persuasive and conclude that the estimate was based on a different understanding of the records requested. I find that FCC 57’s misunderstanding was reasonable in the circumstances.
[27] I will not make any order respecting this category of records. If Mr. Puxty wishes to obtain s. 66 records for the years 2017-2022 from FCC 57, he may submit a new Request for Records. I remind both parties that Mr. Puxty is entitled to records, as an owner. If his unit is sold, his entitlement to records ceases.
All Board Meeting Minutes (2015-2022)
[28] FCC 57 provided an estimate for the provision of eight years of minutes of Board meetings. The evidence indicates that there is an average three pages per month for the minutes of these board meetings. That brings the number of pages to 288 and not a total of 504 pages as indicated by FCC 57 in Response 2. There is an error in the calculation of the number of pages. The estimate in Response 2 indicates a cost of $0.20 per page for a total of $100.80, based on 504 pages.
[29] Ms. Kermeen testified that these records are maintained electronically. She explained that her colleague chooses to print a document and redact it manually, then rescan the document. That is at the discretion of the management company, however the Applicant should not bear the cost of this additional step. For both the reasons stated above, I do not find the fee of $100.80 for photocopying, to be a reasonable charge.
[30] In this case, given the number of years requested, I consider two minutes per page to be an underestimation of time to read and redact the records. A more careful reading of the minutes might be required, since events covered by Request 2 were many years ago. I consider that four minutes per page might be a more accurate estimation of time. This would bring the calculation to just over nineteen hours. The $700.80 estimate for this category of records should be reduced by $100.80 for photocopying. I find that $600 would be a more reasonable estimate for the minutes of Board meetings from 2015-2022.
Cost of Retrieval of Records from Storage
[31] FCC 57 rightly points out that the mandatory Board Response to a Request for Records form does not have a section that allows for aggregate amounts to be pooled together, where there is a one-time charge involving several categories of records. So, for example, FCC 57 included in each category of records, an amount of time for travel to the storage site to retrieve records. If Mr. Puxty pays for all the records, at one time, then clearly only one trip to the storage location is required.
[32] FCC 57 states that since it was not known if all the categories of records would be paid for by Mr. Puxty, it had to include the time estimate for retrieval, in each category. That way, for example if only reserve fund bank statements were ordered, then the travel and retrieval from storage time form part of the calculated estimate. The estimate needed to take into account the fact that pursuant to the Act, if a condominium corporation underestimates costs, they are only entitled to recoup their additional costs, at a discounted rate of ten percent of the difference in the actual cost. I accept this as reasonable.
[33] In closing submissions, FCC 57 indicated that if all the records were paid at once, there could be cost savings to Mr. Puxty of approximately ten hours in reduced travel time, and time spent accessing and locating files. As was already acknowledged, the Act provides that if the estimate reveals an overcharge, an owner will receive a refund of payment.
Itemized Statement of Labour Fees
[34] Mr. Puxty asks for a “detailed itemized statement verified by a third party who can vouch for the hours and time it took” for FCC 57 to produce the records. I decline to make such an order. Sections 13.3 (8) and (9) of O. Reg.48/01 provide a framework for an estimate of labour and photocopying costs for production of records. There is to be an account of the actual costs of producing the records, once the task is completed. If the actual cost is less than the cost incurred, the condominium corporation is obligated to reimburse the owner the amount of the difference. Mr. Puxty is aware of this provision. He indicated in cross examination that he has received such a ‘refund’ on a prior record request.
Issue No. 2: Should a penalty be awarded in this case?
[35] Mr. Puxty has asked that a penalty be awarded. A penalty under s. 144 (1) 6 of the Act states that a Tribunal may award a penalty if it finds that the corporation has refused to provide records, without a reasonable excuse. On the facts before me I have not found that the fee estimates are tantamount to a refusal. I have found the fee estimates to be generally reasonable and find there is no basis to award a penalty in this case.
Issue No. 3: Should there be an award of costs to either party?
[36] Rule 48.2 of the CAT’s Rules of Practice allows the Tribunal to award costs for all or part of legal fees and disbursements incurred in the course of the proceedings where appropriate. In particular, costs may be awarded that directly relate to behaviour that was unreasonable, undertaken for an improper purpose, or that caused a delay or additional expense.
[37] Mr. Puxty was advised several times that issues relating to the governance of the condominium corporation, or the management practices were not properly before me to decide. He persisted in raising such issues and included them in his closing remarks, despite instructions to confine submissions to matters within the jurisdiction of the Tribunal in this case.
[38] I have found that objections raised by Mr. Puxty relate to his view on governance issues which he was made aware fall outside the jurisdiction of this Tribunal. The same can be said for his answers to questions put to him on cross examination.
[39] The Tribunal’s Practice Direction: Approach to Ordering Costs, issued January 1, 2022, outlines some of the factors to be considered in deciding whether to award costs under Rule 48. These include the conduct of a party, and whether the parties attempted to resolve the issues before filing the case. Proportionality is also a factor to consider in determining the appropriate amount of costs to be awarded.
[40] I have found that the estimates provided by FCC 57 are reasonable, except for a $100.80 photocopying charge. Within the context of the number of records requested and the number of years for which the records were requested, this is not a significant amount of money. Mr. Puxty’s $100.80 ‘win’ does not balance out against the $12,804.03 in legal fees and disbursements incurred by the condominium corporation to prove that its estimates were reasonable. As was stated in an earlier case involving these parties, before this Tribunal “the irony here is that out of concern about unnecessary cost and inefficiency, the Applicant created both.”
[41] I order Mr. Puxty to pay FCC 57 $1000 towards the legal costs pursuant to s. 48.2 of the Tribunal’s Rules of Practice. I have been advised that Mr. Puxty has conditionally sold his unit. For this reason, I will order that the sum of $1000 is due within two days of the issuance of this decision.
E. ORDER
[42] This Tribunal Orders that:
1. For as long as Mr. Puxty remains an owner of a unit, he may pay FCC 57 the following amounts to obtain copies of the following records:
i. $504 for the reserve fund monthly bank statements from 2015-2024. FCC 57 will have 30 days from receipt of payment to provide these records to Mr. Puxty, in electronic form. FCC 57 is not required to provide these records to Mr. Puxty if he ceases to be an owner within the 30 days. In such instance, FCC 57 will repay Mr. Puxty $504.
ii. $504 for the general fund monthly bank statements from 2015-2024. FCC 57 will have 30 days from receipt of payment to provide these records to Mr. Puxty in electronic form. FCC 57 is not required to provide these records to Mr. Puxty if he ceases to be an owner within the 30 days. In such instance, FCC 57 will repay Mr. Puxty $504.
iii. $446.40 for the monthly unaudited financial statements 2017-2022. FCC 57 will have 30 days from receipt of payment to provide these records to Mr. Puxty in electronic form. FCC 57 is not required to provide these records to Mr. Puxty if he ceases to be an owner within the 30 days. In such instance, FCC 57 will repay Mr. Puxty $446.60.
iv. $600 for the minutes of Board meetings from 2015-202. FCC 57 will have 30 days from receipt of payment to provide these records to Mr. Puxty in electronic form. FCC 57 is not required to provide these records to Mr. Puxty if he ceases to be an owner within the 30 days. In such instance, FCC 57 will repay Mr. Puxty $600.
2. Within 2 days of the issuance of this Order, Mr. Puxty shall pay $1000 to FCC 57 towards legal costs pursuant to s. 1.44(1) 4 of the Act.
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Anne Gottlieb |
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Member, Condominium Authority Tribunal |
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Released on: January 2, 2025