COVID-19 Bulletin No. 18: Emergency Order Regarding Condominium Meetings

Electronic Meetings are a GO!

Updated on April 27^th, 2020

Another Emergency Order was issued by the Provincial Government of Ontario on April 24^th, 2020 at 5:45p.m.  This order, made pursuant to section 7.1(2) of the Emergency Management and Civil Protection Act (“EMCPA”), amends Regulation 107/20.  This Emergency Order affects three pieces of legislation, but is of primary concern regarding condominiums since it amends the Condominium Act, 1998 (the “Act”). The Emergency Order can be found here:

https://files.ontario.ca/solgen-oic-meetings-for-corporations.pdf

The Emergency Order makes the following legislative amendments to the Act:

1. Temporary suspension of Subsection 35(2) regarding Notice for meetings and now provides that:

• Directors meetings shall be called by written notice and that notice may be given:  Personally, by mail, by courier or by electronic communication, whether or not the bylaws specify otherwise.

2. Temporary suspension of Subsection 35(5) regarding Teleconference meetings and now provides that:

• A meeting of directors may be held by teleconference or another form of prescribed communication.

3. Temporary suspension of Subsection 45(2) regarding the Annual General Meeting and now provides that:

• If the last day on which a meetings is required to be held (within three months after registration of the declaration and description or within six months of the end of each fiscal year) falls within the period of the declared emergency, the last day to hold the AGM is no later than 90 days after the day the emergency is terminated.
• Where a meeting is required to be held on a day within the 30-day period that begins on the day after the day the emergency is terminated , the last day on which the meeting is to be held is no later than the 120^th day the emergency is terminated.

4. Temporary suspension of Subsection 47(1) regarding Giving Notice to Owners and now provides that:

• Notice must be given to Owners in writing;
• Be given at least 15 days before the day of the Owners’ meeting;
• For Preliminary Notices, as per Section 45.1(10), it must be given at least 20 days before the Notice of Meeting for the same meeting;
• Notice must be served in accordance with 47(4) methods of service – this has not changed;
• For Preliminary Notices, the same must be given to mortgagees described in 47(2) and (3) in the method prescribed in 47(5); and
• With respect to a meeting called pursuant to section 47(1)(b) the date of which falls within the period of the declared emergency, and, after the notice is given, the date, time or place of the meeting is changed in order to hold the meeting by telephonic or electronic means, another notice of the meeting is NOT required.  However, everyone entitled to receive notice must be informed of the change in a manner and must be held within a time that is reasonable in circumstances.

5. Temporary suspension of Subsection 50(2) regarding Determination of Quorum and now provides that:

• To count towards the quorum, an owner must be entitled to vote at a meeting and shall be present at a meeting or represented by a proxy.
• A meeting of owners may be held by telephonic or electronic means as per section 52(1.1) and an owner or a mortgage, who, personally or by proxy, votes electronically or telephonically at the meeting or establishes a communications link to the meeting shall be deemed to be present at the meeting or represented by proxy.

6. Temporary suspension of Subsection 52(1) regarding Method of Voting and now provides that:

• Votes may be cast by:

1. A show of hands, personally or by proxy;
2. OR by a vote that is recorded via a

a.ballot cast personally or by a proxy;

b.marked on an instrument appointing a proxy; and

c.indicated by telephonic or electronic means, whether the bylaws so permit.

7. Temporary suspension of Subsection 54(1) regarding Teleconference meetings and now provides that:

• Service can be affected by electronic means.
• This applies even if an owner has not entered into a section 47(4)(c) agreement and even if a mortgagee has not entered into section 47(5)(c) agreement.

Key takeaways:

1. Electronic Meetings are a go.
2. Electronic Meetings do not have to be a go and can be delayed until the emergency is declared over
3. A ballot cast prior to the meeting still does not replace the requirement to attend the meeting in person, by proxy or by electronic means.
4. The Emergency Orders are temporary and need to be renewed every 90 days and thus, it is unclear yet when the deadlines for meetings will be exactly.
5. “Electronic means” means any electronic or technological means to transmit information or data including computers, fax and email.

Education, Education, Education will be necessary for boards and unit owners to understand the different dynamics of electronic meeting platforms and how they will operate.  Some key questions for providers of “Electronic means” for meetings that Boards should be concerned about:

1. Proxy holders need to have the right number of ballots.  How is this assured before and during the meeting?
2. Who should control the meetings?  Can participants corrupt/disrupt the meeting?
3. How is electronic voting closed before the meeting? How far in advance of the meeting is this done?
4. How are proxies retracted before the meeting?
5. How are amendments to a bylaw voted on?
6. How do the types of proxies get sorted?  How do they get assigned to the Proxyholder?
7. Hosts, Speakers and Attendees:  How do Attendees register points of order? Or objections?
8.  How do Owners participate? How are unit owners identified?
9. Are recordings optional or mandatory?  Can it be mandatory?
10. How are candidates from the floor nominated?
11. How are director disclosure forms undertaken?  Orally?  Can those responses be recorded?
12. Can unit owners participate by phone? How do they not duplicate participation?

So, as we think ahead to better days without the pandemic as the motivating factor for change, we hope that our boards think about embracing technology more. Technology seems to be catching up to the point where real time voting and hybrid (personal and electronic) attendance is possible.  Both of these issues have been veritable concerns in the past.  Now would be a good time to put in place the electronic voting by-law.  Caution - certain electronic voting by-laws that are circulating suggest that an electronic ballot, even if cast prior to the meeting, takes the place of attendance in person, by proxy or electronically. The legislative changes above, establish that the Act does not permit this.  So make sure the bylaw is drafted thoughtfully.

If you have any questions, please call anyone on our team:

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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