We saw “condo meeting” cases before the court in 2021, seeking procedural directions or injunctions to stop them.
For each case that made it to a judge, more cases were negotiated between condo lawyers and owner lawyers, at a cost to both parties. The negotiations often aimed for meeting transparency from notice through vote tabulation.
The Condo Act is silent on many issues management, boards and owners face in navigating meeting minefields. We turn to rules of order, past practice and common sense. Here are some of the common questions and issues we have recently encountered.
Who is allowed to have the owner’s list?
A condo’s record of owners and mortgagees is a core record. It must include the owner/mortgagee’s address for service by mail. It must be provided to an owner or owner’s agent within 30 days of a formal record request.
Owners often use the record of owners to solicit or canvass on condo governance matters.
Solicitation is subject to an individual condo’s declaration and rules. Most rules will allow canvassing for elections, including board of director elections, but may otherwise prohibit solicitation for other purposes and generally prohibit behavior that is a nuisance or annoyance.
Canvassing is important because it allows stakeholders to meet and interact with candidates running for the board before the meeting. Very rarely is there a “debate” or question and answer of candidates. They make a 2-minute speech at the meeting and then the election takes place. When canvassing has become an issue or in hotly contested elections, we have recommended that our boards hold a “candidates’ night” where individuals running for election and the owner voters have an opportunity to discuss issues and platforms in a neutrally moderated way.
Who is entitled to the owners’ arrears list?
The registrar and the chair of the meeting.
The registrar can range from management to an agent of the corporation like their lawyer or third-party meeting host. The registrar of the meeting is the entry gatekeeper. They make sure only those who technically should be at an owners meeting are at the meeting on the very basic criteria of being an owner, mortgagee or their proxy.
The registrar will also verify if the owner is in arrears of any contributions relating to the unit for more than a month at the date of the meeting. If the owner is in arrears, the registrar may still permit them access to the meeting for quorum purposes, but they are not entitled to vote. The registrar initially distributes ballots or includes proxies for tabulation on the basis of arrears.
The chair of the meeting can make the final call on eligibility to vote based on arrears. The chair should have access to the arrears list for that purpose, if necessary.
Are electronic proxies allowed?
There is a misconception that proxies must be original, wet ink documents. That is so 2001.
A proxy must be written, “under the hand” of the owner or their attorney, be for one or more particular meetings, comply with the regulations and be in the mandatory prescribed form.
Older case law confirms that “under the hand” of the appointer can include a name written in cursive or in print.
The Electronic Commerce Act, which permits electronic signatures for proxies and applies to most condo governance and voting related documents (we blogged about that here).
There is no question that a proxy completed electronically or scanned and registered electronically can be used for an owners’ meeting . It must be signed by an owner – in hand or electronically and the owner must be entitled to vote.
Pre-populating proxies/what to include about completing the proxy in the meeting package?
The Condominium Authority of Ontario (“CAO”) recommends against condos providing pre-populating proxies as this may lead to unintended votes. While the form of proxy is mandatory, a proxy does not need to be included in a meeting package. If there is going to be drama over a pre-populated proxy, include the names of any notice candidates in the meeting package, a blank proxy and a link to the CAO “Proxy Overview and Sample Form” resource.
Who should proxies be delivered to?
To the registrar, before or at the meeting. In practice, owners may give their proxy to management or a board member for filing with the registrar of the meeting because there may not be any other way to get proxies filed for an electronic meeting if there is no physical registration table.
Proxy fraud – what is the test?
A proxy is considered valid if it is in the proper form and appears to have been signed by an owner.
Objections to proxies must be made at the meeting to the chair of the meeting. It is the chair’s job to deal with and review such objections at the meeting because once the chair has declared the results of voting, their declaration is final and binding and their role is complete.
The only options to overturn a chair’s decision after the meeting is a recall of the vote (on majority owner consent) or a reversal by the court.
A person alleging proxy fraud must show, on a balance of possibilities, that there were proxies registered for a meeting that were not technically compliant or which are fraudulent. Only those proxies where such is proven should be invalidated. An objector (and the court) will also consider whether there were enough impugned proxies to change the outcome of the election.