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 Until the condominium corporation has knowledge that a power of attorney has been revoked in writing, a properly signed power of attorney that is presented at a meeting of owners must be accepted as valid and in force.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.
If you are having difficulty obtaining the necessary attendance to pass a by-law, using proxy votes may be the answer.
Passing a condominium by-law requires an affirmative vote by the owners of a majority of all units. In other words, the owners of a majority of all units must vote in favour of passing the by-law.
Sometimes, at a meeting of owners, there are not enough units represented in person or by proxy to even hold the by-law vote.
In such situations, the owners at the meeting (assuming there is a quorum) can vote to adjourn the meeting to a new date which is either set at the meeting or is to be determined by the Board. The vote should be to adjourn the meeting, or to adjourn the particular business (consideration of the by-law), without simply terminating or closing the meeting. It is also important that the proxies that are used for the meeting state that they can be used both for the original meeting and any adjournment of the meeting.
Between the date of the original meeting and the resumption of the same meeting, proxies can be solicited from owners. Owners who were not in attendance (either in person or by proxy), at the original meeting, can sign proxies. Owners who were in attendance (either in person or by proxy), at the original meeting, can also sign proxies or can revoke and/or replace their original proxies.
If the Board is to determine the date of the re-called meeting, the Board will normally re-call the meeting (with the usual 15 days’ notice) after sufficient proxies have been received to hold a vote on the by-law.
At the re-called meeting, and assuming that sufficient units are then represented in person or by proxy, a vote can be taken on the bylaw.
Proxies for the election of condo board directors can sometimes be confusing. We often recommend using a “ranking proxy” that ranks the candidates in the signatory’s order of preference.
Proxies can be tricky to manage for the following reasons:
- Section 52 (5) of the Condominium Act says that the proxy form must indicate the candidate(s) for whom the signatory is voting. In other words; the signatory’s election choices must be made at the time the proxy is signed.
- There may be more than one election, with different participating voters, at the meeting. For example, there may be one election, pursuant to Section 51 (6) of the Condominium Act, in which only the owners who occupy their units can vote, and there may be another election at the same meeting, in which all owners can vote.
- The candidates may not be the same in each election.
- One or more candidates may “drop out of an election.” For example, a candidate may simply decide to withdraw his or her candidacy (after proxies have been signed), or a candidate may be elected (in one election) and then, of course, will not be a candidate in any subsequent election.
Using a “ranking proxy” may help avoid some of this confusion. If a chosen candidate is no longer running in an election, the scrutineer simply skips to the next chosen candidate in order, and the same ranking instruction can also apply to each election at the meeting. Of course, adjustments to the proxy form would be required if the signatory’s order of preference is different for each election at the meeting.