The amended Condominium Act, 1998 allows condominium corporations to pass a by-law authorizing owners to attend meetings electronically and/or vote electronically. But what exactly does this permit? For instance, can the by-law allow owners to vote at any time (not necessarily during the holding of the meeting)? And can the voting be done without using a proxy? Continue reading “Electronic Meeting Attendance and Voting: What is Permitted?”
In this Blog No. 4, I explore what the Summary has to say about Changes to Meetings and Voting.
The Summary respecting the proposed new Regulations refers to some Changes to Meetings and Voting. In the case of owners’ meetings, the changes will generally apply to meetings held at least 40 days after the Regulations come into force (unless the notice of meeting is sent before the Regulations come into force).
[Note: The target date for the Regulations to come into force appears to be July 1, 2017.]
Here are some of the highlights.
New Quorum Requirements for Meetings of Owners
Currently, the quorum requirement for meetings of the owners is the owners of 25% of the units (unless the corporation has passed a by-law to increase the quorum requirement to 33 1/3%).
Under the proposed Regulations, quorum for the third attempt to hold a meeting will be reduced to 15% for the following types of meetings:
- Turnover Meetings
- Any meeting to appoint a new Auditor
- Any meeting to elect Directors
Condominiums will be deemed to have a standard by-law provision stating that owners voting by ballot, by proxy or by telephonic or electronic means must always be permitted to vote secretly – without revealing their names or unit numbers. (This standard by-law provision can only be amended after turnover.)
The Regulations will confirm the meaning of a “recorded vote” (also defined under the amendments to the Act).
There will be a mandatory proxy form to be contained in the new Regulations.
The required vote to confirm certain NEW types of by-laws will be reduced to an ordinary vote – ie. a majority of the votes cast with a quorum of units represented (either in person or by proxy) at the meeting. The Summary says that this reduced voting requirement will apply to By-laws
- To add information to be included in a periodic information certificate, an information certificate update or a new owner information certificate.
- To specify more frequent time periods for sending a periodic information certificate.
- To specify additional disclosure obligations under subsection 29 (1) (f) and 29 (2) (f) of the Condominium Act, and any related time periods for those additional obligations.
- To govern the manner in which required information is presented at a meeting of owners, and identifying additional material to place before the owners at the meeting.
- To govern the manner in which an individual may notify the board under clause 45.1 (1) (a) of the act, and the manner in which an owner may provide material to the board under clause 45.1 (1) (b) of the act.
- To govern additional materials that are to be included in a preliminary notice or notice of meeting sent by the condominium corporation.
- To specify the method of electronic communication the condominium corporation can use in relation to communication by the corporation under the Condominium Act and the accompanying regulations.
- To govern the manner in which an owner may be present at a meeting of owners or represented by proxy.
- To allow for voting by telephonic or electronic means under s. 52(1)(b)(iii) of the Condominium Act.
- To specify additional records that must be maintained and to increase required retention periods.
Board Meetings by Teleconference
Boards will be entitled to hold Board Meetings by teleconference or other method of concurrent communication.
Stay tuned for our next blog in this series about the new Regulations.
Section 51 (3) of the Condominium Act, 1998 deals with voting in the case of units owned by two or more owners, but Section 51 (3) is confusing. Section 51 (3) reads as follows:
The majority of the owners of a unit may exercise the right to vote in respect of the unit but the vote shall not be counted if there are two or more owners of the unit and they are evenly divided on how to exercise the vote.
Here’s the problem: Suppose a unit is owned by two (or more) persons. If only one of those owners seeks to exercise the voting rights for the unit, it’s not clear that he or she has the right to vote. This is because a “majority” is more than half. Therefore, one owner (out of two or more) would not constitute a majority.
In my view, one possible solution is to pass a clarifying by-law stating that any one owner of a unit may exercise the vote (for the unit), and the provisions of Section 51 (3) will apply only if two or more of the owners of a unit decide to vote.
Subsection 52(2) of the Condominium Act allows a person who is entitled to vote at a meeting of owners to request that a recorded vote be held (on any item scheduled for a vote). This section requires that the request be made either before, or promptly after, the vote is taken.
The term “recorded vote” is not defined in the Act, nor has it been defined by the Courts. It is therefore not 100% clear what is meant by the term “recorded vote”. As a result of this uncertainty, it is important, in the event of a request for a recorded vote, that the individual making the request, the chair, and all other owners present at the meeting, agree on (or at least understand) the particular process that will be followed for the purpose of taking the recorded vote.
In my view, a recorded vote is any voting process that results in the recording (in the meeting minutes) of the voting results (ie. the numbers for and against the particular motion). For instance, a recorded vote could be taken by poll (ie. a roll call), a secret ballot (in which case the voter is not identified on the ballot) or an open ballot (in which case the voter is identified on the ballot). Depending upon the type of recorded vote, owners may or may not be entitled to know how each of the other owners voted.
Condominiums may pass bylaws to govern how a recorded vote is to be taken for a particular condominium, and the bylaw may specify the process to be followed. Often, this type of provision can be found in a condominium corporation’s operational or comprehensive bylaw. If there is no existing provision, a condominium corporation may pass a bylaw to amend its operational bylaw by adding a provision to deal with the recorded vote.
Absent a bylaw, the process to be followed when a request for a recorded vote is made may be decided by the chair, or perhaps may be decided by the owners present (or represented) at the meeting, by ordinary resolution.
Regardless of the process selected, it is our general view that, if requested, owners are entitled to know the “number results” of a vote – in other words, owners are entitled to know how many individuals voted for or against a particular item, or how many individuals voted for each candidate in an election. If such a request is made, unless the person making the request agrees to be told privately of the results, the chair of the meeting would be required to announce the number results for the particular vote.
Decisions of the Board of Directors are made by vote, at meetings of the Board. Here are some quick notes about Board voting:
- For there to be a vote, there must be a quorum present.
- Condominium Directors can’t vote by proxy.
- The general nature of the business (to be voted upon) must be stated or implied in the Notice of Meeting.
- Each Director has one vote, including the chair. The chair never has an extra vote. But the chair always has the right to exercise his or her one vote. [For instance, the chair’s vote may break a tie or create a tie.]
- For a motion to be carried, a majority of the votes cast must be in favour of the motion. In the event of a tie (among the votes cast), the motion fails.
- Directors can abstain (and of course must abstain if in a conflict). An abstention is a vote that is not cast.