What constitutes “correspondence” for the purposes of s.35 of the Strata Property Act (SPA) has been the subject of past judicial consideration. In Kayne v. The Owners, Strata Plan LMS 2374 2007 BCSC 1610 the court held that emails between strata council members did not constitute correspondence for the purposes of section 35(2)(k) of the SPA. That decision was recently confirmed in Pritchard v. The Owners, Strata Plan VIS3743 2017 BCCRT 69.  However, correspondence between strata managers and the council is considered correspondence, a record of which must then be kept - Hamilton v. The Owners, Strata Plan NWS 1018, 2017 BCCRT 141. An email from a strata council member to a non-council member on behalf of the strata corporation, even if using their private email address, is a record which must be retained.

Complaints (whether by email or letter) sent to the strata corporation regarding other owners and tenants are aslo considered “correspondence” within the meaning of section 35(2)(k). This means they must be produced under section 36. Although the Personal Information Protection Act (PIPA) requires a strata corporation to protect an owner’s personal information, that requirement does not apply in this instance. The OIPC Guidelines For Strata Corporation’s And Strata Agents provides:

“Therefore, while the disclosure of personal information in the particulars of a complaint should be limited as described above, this does not mean that the correspondence required to be provided under section 36 of the SPA is to be limited or severed in any way under PIPA, even where that correspondence relates to a complaint.”

The disclosure of complaint letters was discussed by the Civil Resolution Tribunal (CRT) in Betuzzi v. The Owners, Strata Plan K350 2017 BCCRT 6. In that decision, the CRT held that the fact that correspondence may contain personal information “does not authorize the strata to refuse access to a record (or censor parts of a record) when a section 36 access request is made, except in very limited circumstances.” The CRT did not say what those circumstances are but presumably they would be things such as hardship applications made under s.144 of the SPA. The strata corporation is obliged to provide an owner requesting a copy of a complaint with a full and unedited version of the same. The only exception to that is where the correspondence is older than 2 years (being the time for which the strata corporation must retain correspondence under Regulation 4.1). In such an instance, the strata corporation must redact the information since it is no longer disclsoure authorized by law. Strata corporations should ensure that their privacy policy reflects this disclosure so owners are aware that any complaints they make might end up being disclosed.

The discussion of correspondence at council meetings was considered in Smiley v. The Residential Section of The Owners, Strata Plan VIS1921 2017 BCCRT 75. In that case, the section executive had a policy that required observers to leave when correspondence was discussed. The CRT held that whether owners could be asked to leave in such a case depended on the bylaws of the strata corporation or section; which in this case were the same as the Standard Bylaw 17(4) which excludes observers with respect to:

(a) bylaw contravention hearings under section 135 of the Act;

(b) rental restriction bylaw exemption hearings under section 144 of the Act;

(c) any other matters if the presence of observers would, in the council's opinion, unreasonably interfere with an individual's privacy.

Since the bylaw did not refer to general correspondence, observers could not be excluded based on a “policy”. Each letter would have to be reviewed and it would need to be determined if discussing it would “unreasonably interfere” with the author's privacy. Councils who wish to have a greater ability to review correspondence in private need to amend their bylaws.

This article is intended for information purposes only and should not be taken as the provision of legal advice.