Toronto jazz radio station Jazz.FM 91 was recently before Justice Dunphy of the Ontario Superior Court on a narrow but interesting issue: does the Corporations Act, S.O. 1990, c. C.38 (the “Act”) require an organization to disclose the email addresses and phone numbers of its members?
The Corporations Act on Member Names and Addresses
Subsection 300(1) of the Act requires that corporations, including corporations without share capital, maintain a register of members’ names and addresses, and subsection 305(1) provides that the registers shall be open to inspection by the members. The Act says nothing about email addresses or telephone numbers; not surprising since the Act dates from the 1950s.
Donor-Members Seek Address Information
In 2018, an activist group of donor-members requested the membership list of the organization, arguing that the members are entitled to the disclosure. The board of directors provided the names and addresses of the members but declined to provide email addresses and phone numbers, taking the position that it had complied with the requirements under the Act by providing the names and addresses, and citing concern for privacy with the disclosure of email addresses and phone numbers.
An Order for Disclosure
The applicant applied to the Ontario Superior Court of Justice for an order requiring their disclosure, and in a decision delivered from the bench on December 14, 2018, Justice Dunphy ordered that the email addresses, but not the phone numbers, of the members be released.
Justice Dunphy was critical of the organization’s response, finding that the station had adopted “a narrow view of its obligations… [which] was clearly adopted to frustrate the applicants and not — as suggested — out of concern to maintain privacy.”
Stay of Order Denied
Jazz.FM 91 sought a stay of the Order, but it was denied, and Jazz.FM 91 has now released the members’ email addresses. Costs were awarded against Jazz.FM 91.
Oligation to Disclose vs. Obligation to Protect Personal Information
Given the prevalence of email communication today, and that in this case Justice Dunphy found email to be the “primary means of notice used to contact the overwhelming number of members,” his order is perhaps not so surprising. However, by dismissing the privacy concerns the board had in releasing the email addresses, we are unfortunately left without guidance on how organizations should balance their obligations to disclose on the one hand, with their obligations to protect members’ personal information on the other.
Organizations that are uncertain as to how to treat requests from members, whether disgruntled or not, should always review their statutory obligations carefully. If you or your organization has any questions about the obligations an organization has with respect to its members, we would be pleased to assist. Contact us at 416-863-0125 or online.