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.
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.
