Our lawyers have now had many opportunities to attend condominium meetings following the arrival of the new prescribed proxy form. And it’s clear to us that many owners are struggling with the new form. The problem seems to be that the new form (although excellent in many ways) is just not all that user-friendly. We’ve all seen plenty of comments about this from across Ontario.
So, I decided to prepare an improved version of the prescribed proxy form. You can find it here. Continue reading “Improving the New Prescribed Proxy Form”
The recent amendments to the Condominium Act and its regulations resulted in changes to how proxies (for meetings of owners) may be given and the voting authority that may be given to the person appointed as proxy. One question that we’ve considered with respect to these changes is: Absent specific instructions from the proxy-giver, is the person appointed as proxy now permitted to decide how to vote for candidates for election?
Powers of Attorney seem like simple things. Everyone has them but when the time comes that they need to be used, complications often arise. We have seen these at condominium meetings. The issue is whether or not to accept a photocopy of the power of attorney document, or even a written statement that “X has my power of attorney”, as authority to allow the “attorney” to vote or speak at a meeting of owners. More so, is the power of attorney the same as a proxy or does it have some greater authority? The decision on whether or not to accept a power of attorney at a meeting of owners, and for what purpose, is the responsibility of the chair of the meeting.
The Substitute Decisions Act (“SDA”) of Ontario is the governing statute for powers of attorney. The SDA says that a power of attorney is in force until it is revoked in writing and this revocation is either communicated by the attorney or by the person giving the power of attorney (the “Donor”). Until the condominium corporation has knowledge that a power of attorney has been revoked in writing, a properly signed power of attorney that is presented at a meeting of owners must be accepted as valid and in force.
A statement by a person who says that he/she has a power of attorney for a unit owner should not be accepted by a chair for any purpose. As well, a photocopy of a power of attorney is also not sufficient. A notarial copy of a signed power of attorney (or the original signed power of attorney) must be provided to the meeting for the attorney to be accepted as representing the Donor unit owner.
Unless there are restrictions in the power of attorney document, an attorney can do anything that the Donor can do except make a will for the Donor. This means that once the power of attorney is accepted by the meeting chair, the attorney becomes the Donor/unit owner for the purposes of the meeting. He/she can vote at a meeting and can speak at the meeting on behalf of the owner.
What is often confusing is whether a power of attorney is the same as a proxy. A power of attorney is more powerful than a proxy, in that a proxy is simply a direction from the owner to the proxy holder to vote or withhold a vote for a particular purpose or purposes. On the other hand, an attorney becomes the Donor/unit owner for the purposes of the meeting, and no proxy is needed by the attorney.
The only thing that an attorney cannot do at a meeting is to serve as a director on behalf of the Donor/unit owner. While an attorney can agree on behalf of the Donor to run for a director’s position, once elected, only the Donor can attend and take part at directors meetings.
We have seen many proper and improper uses of powers of attorney over the years. It is important for a meeting chair to understand the authority and limits of the power of attorney document.
- the proxy instrument is “in writing, under the hand of the appointer or the appointer’s attorney” (in accordance with Section 52 (4) of the Condominium Act, 1998 (“the Act”);
- the proxy instrument is only for a particular meeting (including any adjournment of that meeting);
- the proxy instrument clearly expresses the appointer’s desire to have his or her vote exercised by the appointed proxy; and
- the appointer has the right to vote at the meeting.