Quorum – Board Meetings

What is the quorum for a Board meeting? Unfortunately, Section 32 (2) of the Condominium Act, 1998 (the “Act”) is not all that clear.

A quorum is the minimum required attendance (at a meeting or other assembly) for the transaction of business. In the case of a condominium Board meeting, as long as there is a quorum in attendance, decisions can then be taken based upon a majority of the votes cast by the attending directors. As far as concerns the required quorum, Section 32 (2) of the Act states as follows:

A quorum for the transaction of business is a majority of the members of the board.

So for example, if there are five members of the Board, a quorum is three.

But what if there are two vacancies on a “five-member Board”, leaving only three members on the Board? Does the quorum then become two (ie. a majority of the remaining members of the board)?

In my view, the answer is “no”. I say this because Section 34 of the Act states that the Board cannot transact new business unless a quorum remains in office. This tells us that a quorum isn’t a majority of the remaining directors, but rather is a majority of a full board.

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What is a ‘Recorded 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.

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Notes on Board Voting

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.
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New Condo Lawyer – Kristen Bailey

We are delighted to advise that a new lawyer – Kristen Bailey – has joined Nelligan O’Brien Payne’s Condominium Law Group.

Kristen graduated from Queen’s Law School in 2004, and was called to the Ontario Bar in 2005. Kristen has several years of experience practicing condominium law in Toronto, at the law firm of Fine & Deo.

We are thrilled that Kristen has moved to Ottawa!

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Common Element Alterations by Owners

If an owner wishes to make an alteration to the common elements – say, a landing pad on the roof, for Santa’s sleigh – there are various requirements that apply. Those requirements are as follows:

  1. Under Section 98 of the Condominium Act (“the Act”), the alteration requires consent of the Board and an agreement between the owner and the condominium corporation, registered on title to the owner’s unit. The agreement must deal with certain matters set out in Section 98.
  2. Unless the alteration meets the criteria listed in Section 98(2) of the Act, it may be necessary to involve all owners in the approval process, pursuant to Section 97 of the Act.

[Note 1: If an owner is entitled to an alteration under the Ontario Human Rights Code, this requirement will not apply. However, depending upon the circumstances, an agreement (Item 1 above) might still be appropriate.

Note 2: Even if owner involvement isn’t required in a particular case, it may still be wise to notify owners of the permitted alteration(s).]

  1. The Declaration, By-laws and Rules may contain additional requirements.
  2. Any status certificate subsequently issued in relation to the unit must make reference to the alteration (in paragraph 23 of the certificate).

In our view, a “Section 98 By-law” may be an excellent way to satisfy Items 1 and 2 above, and can save the expense of having to register a separate agreement for each permitted alteration.

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