Condos are drowning in records… and records requests. This is creating uncertainty, risk, and frustration as boards and managers try to determine what is a record, what is not and how long to keep them. STACK has you covered!
Growing problem
There has been an explosion of records recently.
This is due (in part) to the expanding definition of what qualifies as a “record of the corporation”. These now go well beyond meeting minutes and financial statements.
But this proliferation of records is also the result of a cultural and technological shift. We now live in a digital world where communication happens across emails, texts, messaging platforms, social media, and countless other channels, which creates a constant stream of drafts, reports, backups, comments, and platform-generated documents that multiply at an exponential rate.
This leaves boards and managers asking the same questions over and over:
What is a corporate record?
What is not?
And how long, exactly, are we supposed to keep all of this stuff?
Fear not. We did the heavy lifting for you! At the end of this post, you’ll find our Record Retention for Dummies chart—because compliance should not require the Rosetta Stone.
What Are Corporate Records
There are 3 main sources of corporate records:
- Section 55 of the Condo Act;
- Section 13.1 of the general Regulation;
- Possibly your own by-laws.
The starting point when attempting to identify your corporation’s records is to review section 55 of the Act. There, some 11 distinct records are listed as corporate records, including financial records, minutes, declaration, by-laws, rules, returns filed with the CAO, RFS, etc.
Most importantly, section 55 also lists the following as corporate records:
- All records that are prescribed, if any;
- Any additional records specified in the corporation’s by-laws – in case one felt the urge to add to the plethora of records already listed.
Any time you see a reference to something being “prescribed”, you need to consult the regulations adopted under Act. In this case, you have to review section 13.1 of O. Reg 48/01. There, you will find a hockey bag full of subsections, referring to other sections in either the Act or in the regulation.
How long must you retain records for?
Once you have figured out what are your corporation’s records, you then need to ask yourself how long you must hold on to each of them.
To do so, you need to digest subsection 13.1(2) of the general regulation. There again, rather than listing the corporation’s records in plain language, the subsections refer to sub-paragraphs in both the Condo Act and in the regulation, for you to build your own retention calendar. A sort of IKEA legislative construction exercise.
Still, at the end of the day, there are generally 3 different retention periods:
- 90 days
- 7 years
- At all times
If a record has been requested, you must extend the preservation period by 6 months. If litigation is commenced during that time frame, you must preserve the records as agreed or as ordered pending said litigation.
Finally, keep in mind that, if no retention period is specified, or when in doubt, the corporation should retain the records for “the period of time the board determines as necessary to perform the corporation’s objects, duties or powers“.
At "all times"?
One of the retention period refers to “at all times”. For instance, the governing documents must be retained “at all times”. Same with board minutes, the performance audit, and the list of owners/tenants…
How long is “at all times”? The CAO’s retention chart translates this into “always/indefinitely”. In other words, for ever. Respectfully, and without wanting to argue semantics, I think a little nuance is required.
In legislation, “at all times” usually means continuously, without interruption. It implies an ongoing obligation or requirement. So, to me, in the case of record retention, “at all times” probably implies the obligation to maintain the current version of a document (for as long as it is the current version). I reach that conclusion for instance when dealing with the list of owners, mortgagees and tenants. In my view, you are not required to keep the 2022 version of your owners’ list. Similarly, in my view, you are not required to maintain warranties for ever. Only while they are current or in effect.
Condo Record Retention chart
If you’ve read this far, it’s likely because you are hoping to get an easy-to-use chart that will summarize all of the above. You’re in luck!
Here’s a link to our Record retention chart.
