What About Returning to In-Person Board Meetings?

Because of the recent changes to physical distancing and permitted gatherings, some Boards may consider returning to in-person Board meetings. What are the implications?

The revised Emergency Order now allows for in-person gatherings of up to 10 people (anywhere in Ontario), as long as persons who are not from the same household continue to comply with physical distancing requirements (namely, a minimum separation of 2 meters).

Therefore, as long as the above distancing requirements are met, it seems to me that condominium Boards could decide to hold “in person” Board meetings.

HOWEVER: During the temporary suspension period (which essentially means the period of the declared emergency plus a further 120 days), Section 35 (5) of the Condominium Act is amended to read as follows:

Teleconference

(5) A meeting of the directors may be held, in accordance with the regulations, by teleconference or another form of communications system that is prescribed.

The relevant provision is Section 11.12 of Regulation 48/01, which reads as follows:

Meeting of directors by electronic means

11.12 (1) This section applies to a meeting of directors only if the meeting is called on or after the day section 32 of Schedule 1 to the Protecting Condominium Owners Act, 2015 comes into force. O. Reg. 180/17, s. 8.

(2) The other form of communication system that is prescribed for the purpose of subsection 35 (5) of the Act is any system that is transmitted in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for transmission similar to those means. O. Reg. 180/17, s. 8.

(3) For the purpose of subsection 35 (5) of the Act, a meeting of directors must be held by a communication system that allows the directors to communicate concurrently. O. Reg. 180/17, s. 8.

THEREFORE: During the emergency (and for a further 120 days thereafter), condominium directors are permitted to hold meetings by teleconference or by any other electronic method that permits all directors to communicate concurrently; and there is no need for all Directors to agree to such.

Although the legislation is not absolutely clear on this point, my reading of the legislation is that someone attending a Board meeting has the right to attend by teleconference or another electronic method (as described above).

So for instance, someone in a high risk category (or having contact with loved ones who are in a high risk category) may have good reason for wanting to attend a meeting by teleconference or another electronic method (as described above). And it’s my view that the Board must permit this (at least during the temporary suspension period, as described above). [I leave open for further consideration whether or not a Board of Directors must remain willing to allow such attendance even after the expiry of the temporary suspension period. That is a discussion for another day.]

SO IN SUMMARY: It’s my view that – even if a Board decides to “return to in-person Board meetings” – the Board must make arrangements (if asked) for anyone attending the meeting (whether a Board member, the Manager or someone else) to attend by teleconference or another electronic method (as described above)…at least during the temporary suspension period (and perhaps beyond the temporary suspension period…but that may need further consideration).

Stay tuned to Condo Law News to keep up to date on the latest developments in condominium law!

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