To record on Zoom or not – that is the question

August 16th, 2022 by Maggie Fleming

In March 2020, many organizations moved their annual general meetings (AGMs) and board meetings to the internet using platforms like Zoom. Lots of these meetings have stayed online, and for good reason – it’s a way to involve people previously unable to attend and offers an accessible option for those that are not comfortable attending in‑person. For some organizations, pressing the “record” button has become a regular practice. The stated reason often being for minute taking.

But recording, and keeping those recordings, is not without its legal issues.

A recent Condominium Authority Tribunal (CAT) case deals with such a recording, specifically the audio recording of an annual general meeting. In this case, King v. York Region Condominium Corporation No. 692, 2022 ONCAT 80 (CanLII), a condo owner requested draft minutes in relation to three separate AGMs, as well as the audio recording of the most recent AGM. The condo owner’s intention was to use the draft minutes and recordings to show that there had been “unauthorized changes, deletions and/or additions to the draft and signed minutes”. Ultimately, the CAT determined that the condo owner was not entitled to access the recording, because the owner did not have a right under s.55 of the Condominium Act to obtain a copy of the records.

While the condo owner was denied access based on the Condominium Act alone, an interesting point is made in the body of the decision. The condo corporation insisted that the recordings were used solely for minute takers to review later to draft the AGM minutes, and stated that the recordings did not form part of the records of the condo corporation. This is important because, if the recording did form part of the corporation’s records, an owner would be entitled to obtain a copy of them for review. Unfortunately, because the CAT determined that the owner didn’t have a right to request the recording under the Act, the issue regarding whether the recording forms part of the corporation’s record was not addressed. The CAT did however mention that:

“An owner does have a legitimate interest in the management of the corporation and is entitled to records in order to understand how decisions are made and to ensure that decisions are made according to the duties and obligations set out in the Act. But this case is not about that.”

In this way, the CAT does not rule out the possibility of recordings forming part of the records of a corporation, at least in the case of condos. It would be very difficult for a corporation to argue that a recording does not form part of the corporation’s records if the recordings have been stored long after minute‑takers have finalized the meeting minutes. This leaves open the possibility that video recordings of meetings could be accessible to owners, members, or other interested parties.

Privacy issues are also at play when organizations keep recordings of their meetings on file. Under federal privacy legislation, individuals have the right to access all personal information that an organization holds about them. This could include opinions and comments about the individual at a directors’ meeting. As such, corporations should be wary of keeping recordings of meetings on file, as they may be the subject of an access request down the line.

One way for a corporation to avoid this issue is to implement a policy that meetings will be recorded for minute‑verification only, and that all recordings will be deleted within a stated number of days following the meeting. Better yet, a corporation could refrain from recording entirely and rely on minute‑taking instead.

Minutes are not only required by law under corporate statutes but also crucial as a record of an organization’s decision‑making. Minutes should not, however, be a record of everything that was said at a meeting. Minute‑taking involves the careful art of summarizing the main points from a discussion, depersonalizing them, and documenting the motions and decisions that flow from that discussion. None of this requires a recording; it just requires a little preparation by the note‑taker and a lot of attentive listening at the meeting. There are many excellent online resources on minute‑taking, and we can also provide some pointers at your request.

Filed in: Civil Rights, Co-operative Law, Freedom of Information and Privacy, Human Rights, Litigation

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