Condo Smarts: Strata council doesn’t need confidentiality agreement
Times Colonist
Tony Gioventu
08 June 2016
Question:
Dear Tony: Our strata manager and
council president have insisted that every council member has to sign a
confidentiality agreement or resign from council. We were told this is
a requirement of the act, but a few council members have challenged the
intention of this policy and now everyone is back-pedalling. It does
raise a serious matter for strata council members. What type of
standards do we have to maintain regarding confidentiality around the
business of our strata corporation?
Satinder V.
Answer:
There is no requirement for a confidentiality agreement in the Strata
Property Act, regulations or standard bylaws. It’s possible your strata
corporation has adopted a bylaw relating to such agreements, but even
then, is it an enforceable bylaw?
Is it wise to attempt to censor or silence your council members, which may conflict with their duties to the strata corporation?
The act and standard bylaws provide sufficient requirements for council
members’ behaviour, types of meetings where observers are not
permitted, and what information is reported in the minutes. The
Personal Information Protection Act and common law principles also
apply.
Every council member is required to act honestly and in good faith with a view to the best interests of the strata corporation.
There are three occasions where the strata council meets without
observers (in-camera or off the record): when the matter relates to
bylaw contravention hearings, when it deals with hardship rental
restriction applications, and when the presence of observers would
interfere with an individual’s privacy.
The decisions that follow those types of meetings are still recorded,
to provide the owners and future strata council with a record of what
was done.
For example, “the owner of strata lot 15 has been granted a hardship
exemption from the rental restriction bylaws for a period of two years.”
Throughout the hardship application process, the owner may have
provided confidential financial or medical records. The council has a
duty to protect that personal information and would not publish
anything other than the final decision, although a strata council may
retain personal information that supports their decision in the event
of a claim.
There are also conditions that can apply to common practices such as procurement.
If a strata corporation has issued a request for bids on a construction
project or for services, it’s going to be bound by the conditions set
in the request for proposals. Many companies see their bidding
information and pricing as proprietary and don’t want it released to
other parties without their explicit consent. For large construction
projects, protecting bids is often a necessary condition to guarantee
that contractors and suppliers will provide quotes.
Strata councils must heed the advice of their lawyers when dealing with
lawsuits and claims. During the course of a lawsuit or insurance claim,
shared information could be detrimental to a court action and harmful
to the strata corporation’s interests.
The best practice for strata councils is to remind council members when
a matter is confidential, the reason and their obligations to protect
the information.
Attempting to gag council members with a confidentiality agreement at
the risk of expulsion may be contrary to the act, your bylaws and the
best interests of your strata corporation.
If you have an indiscreet council member, deal with them openly and directly at a council meeting.
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