Regulator’s attempt at mining condo owner data called out

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An attempt by the Ontario condominium regulator to send e-mails to every condo owner in the province has raised privacy and ethical concerns with professional property managers and condo law experts.

Every year condominium corporations in Ontario must file an annual return to the Condominium Authority of Ontario (CAO). Starting this year, the CAO added a new section to this mandatory filing that asks how each of the more than 12,000 condos keeps track of the e-mail addresses of registered owners. The form goes on to say the “CAO would like to engage directly with all condo owners regarding the information and services that we have developed” and asks managers to check a “Yes” or “No” box to indicate whether they’d like to be contacted by the CAO to “discuss how we might connect with your owners.”

The request for consultation related to e-mail addresses is a red flag for condominium management companies who say they have ethical and legal duties not to share that kind of information with anyone, let alone a third-party organization such as the CAO.

“I believe what they’re trying to do is complete overreach. I don’t believe that they have the authority or the right to request contact information of individual condominium corporation owners,” said Robert Weinberg, president and CEO of Percel Inc., which manages buildings for 180 condo corporations. He questions whether companies such as his even have the legal right to share those e-mail addresses with anyone, let alone the CAO. “What they’ve done is intrusive,” Mr. Weinberg said. “I don’t know how they got approval to do it, but we’re certainly not going to allow them to violate individual people’s rights by giving them access without their permission.”

In two e-mailed statements, the CAO confirmed it had amended the form, but said that its aims are consistent with privacy rules. It said that in 2022 the CAO developed an e-mail newsletter aimed at condo owners, but it has had limited uptake: “Very few of the 900,000-[plus] unit owners in Ontario receive the newsletter and other CAO communications directly from us.” The CAO’s goal, it said, was to “discuss how we might engage with owners directly without compromising privacy” in service of “alleviating a burden on condo corporations to share our information.”

“More than 3,500 condo corporations have filed their returns this year and of those, 58 per cent indicated that they are willing to collaborate with CAO on how to connect with owners,” the CAO statement said.

But that number may be misleading. Some managers say they checked ‘Yes’ to a discussion, but only so they can make clear they will say ‘No’ to a request to contact their owners.

“I couldn’t give [e-mails] out to a car dealer or a real estate agent,” said Dean McCabe, president of condo management company The Meritus Group. “It’s no different [for the CAO]. That’s what our counsel has told us.”

According to condo law expert Rod Escayola, Ontario’s Condominium Act sets out strict boundaries that a collaboration with the CAO cannot cross.

“It would be improper, in my view, for managers to provide any personal data, including e-mail addresses, to the CAO,” said Mr. Escayola. “Unless and until regulation is changed to authorize such disclosure. Owners’ e-mail information is obtained by managers for purposes set out in the Condominium Act – not to become the CAO’s marketing trampoline.”

The CAO is what’s known as an administrative authority. It is not an Ontario government body but operates parts of the province’s regulatory framework for condos on the province’s behalf. Among the duties it carries out is the management of the Condominium Appeals Tribunal where owners and corporations can resolve disputes.

As Mr. Escayola notes, one of the CAT’s early rulings dealt with the subject of e-mails and found the Act does not provide a right for even owners in a condo to collect the e-mail addresses of other owners in their building.

The Condominium Management Regulatory Authority of Ontario was created at the same time as the CAO and performs an overlapping function of licensing the property managers who run the day-to-day affairs of most condos in the province, and its code of ethics specifically prohibits managers from sharing condo owner digital data with third parties.

Canada’s federal legislation in this area – The Personal Information Protection and Electronic Documents Act – focuses heavily on consent. According to privacy law expert Scott Lamb, a partner with Clark Wilson LLP, it is possible that if the CAO gets and uses e-mail contacts that weren’t expressly granted to them by owners it could face complaints to Canada’s Office of the Privacy Commissioner.

“The Privacy Commissioner has these tests of, ‘Are there other ways to manage this problem without collecting this information?’” said Mr. Lamb. “There’s gonna be lawyers that are going to provide advice, and they will default to, ‘You go get consent.’ They [CAO] may be forced ultimately into sending out requests – in writing, in hard copy – confirming, ‘Do you want to receive this stuff?’”

In a second statement, the CAO offered further clarification on its position. “The questions were not directed to managers and were not asking condominium corporations for a list of owner e-mail addresses. Our ask is for voluntary sign-up for a consultation. As always, CAO respects the data and privacy provisions of the Act.”

Mr. Escayola’s view is the entire exercise is ill-advised.

“In fairness to the CAO, the objective is a laudable one. I suspect it’s in the context of to improve how they service the industry,” he said. “But the wise move is to remove that question and probably ignore all the ‘Yesses’ they got.”