We wrote about condo meetings and election pitfalls in the past (see HERE and HERE) but those articles focused on “what happens at the meeting/election”. A recent Superior Court decision highlights the dangers of poor meeting notices – these meetings were essentially dead before they hit the ground.
2030516 Ontario Inc. v. TSCC 2638 et. al. dealt with a 14-unit condominium where the developer owned half of the units. The applicants collectively owned the other half . The developer was over two years late in holding the turnover meeting and therefore the developer’s board remained in control of the condominium. The remaining owners brought an application for a turnover meeting and a resulting court endorsement ordered a “turnover meeting be held on February 10, 2022”.
The developer board delivered a “Notice of Turnover Meeting – Town Hall Meeting” for February 10 without specifying who the candidates for election would be. This notice indicated the February 10 date was to “provide information and logistics for the Turnover Meeting”, to be held the following day. This understandably caused confusion about the scope of the meeting – and the court recognized that it appeared to be “designed to sow confusion”. The owner applicants didn’t clarify the meeting agenda: they simply thought it was a waste of time since it wasn’t the turnover meeting it was supposed to be. The owner applicants did not attend the February 11 meeting and the developer’s representatives were re-elected to the board.
The applicants argued the February 11 meeting was a nullity. In turn, they brought their own requisition meeting to elect candidates to the board. And just as the applicants did at the February 11 meeting, the developer/respondents chose not to attend.
The parties found themselves before the court again no further ahead than they were the first time. Justice Morgan ruled that both meetings were a nullity and ordered a turnover meeting within 30 days with clear guidelines on what the meeting notice was to require. Justice Morgan’s reasons were critical of the parties’ conduct:
It is self-evident that the point of Justice Ramsay’s ruling was to bring the parties together in a statutorily required turnover meeting. The point was not for the parties to treat the condominium board as two solitudes, each group holding their own meeting while complaining about the other’s irregularities and ignoring the other’s outcome. Counsel for both sides seem to want the court to tally up the procedural flaws engaged in by each side in holding their respective meetings, and on that basis to conclude who was right and who was wrong.
Both sides in this case are responsible for letting things unfold the way they did. Here are some pointers to avoid this mess:
- Ensure Notices are Crystal Clear: The purpose of a meeting notice is obvious. The notice should tell owners when/where is the meeting, what is on the agenda, what items require a vote, if there are deadlines for submissions and anything else that relates to the meeting. These are easy items to make crystal clear.
- Maintain Owners’ List: We go back to this one often. One of the issues in this case was whether some owners were in arrears and therefore ineligible to vote. An up-to-date owners’ list will readily answer questions about voter eligibility. Therefore, it is imperative that a current owners’ list is available.
- Be reasonable: Reasonableness should always be the guiding compass. Seeking clarification and responding to legitimate questions (even if they come from difficult parties) are basic starting points. Reasonableness is not a sign of weakness; it is a sign of competence. Don’t look for ways to obstruct the democratic process. Everyone in a condominium should be working together in the best interest of the condominium corporation. If the cost of this means making harmless concessions or being neighbourly, it is a small price to pay for goodwill later.
Condominium living is communal living and the democratic function of the Condo Act reinforces this. Fostering a proletariat-bourgeois/us vs. them divide between owners and the board is not conducive to condominium living. Petty battles and taking positions for the sake of positions are far too expensive for far too little reward. Two wrongs don’t make a right and an eye for an eye makes the world go blind – this is a textbook case of that.