Legal

November 1, 2023 Published by Golden Horseshoe Chapter - By Maria Durdan, Richard Elia

Bill 91 – Less Red Tape, 7.5/10 Stronger Economy Act, 2023 – effective October 1, 2023

From the Volume 17, Fall 2023 issue of the CCI GHC Condo News Magazine

Changes to the Condominium Act, 1998 – Rank 7.5/10

There is little doubt that many were looking forward to October 1, 2023, at which time Bill 91 was proclaimed into law – and why not? After all, Bill 91 codifies much of what the Ontario Government brought in as emergency legislation during the Covid Lockdown. For example,

1. Virtual Owners’ meetings can be called and held without a by-law authorizing same (with a very logical requirement that Owners be instructed on how to log into the meeting);
2. Virtual Board meetings no longer require the consent of all directors (previously, any one director held effective veto power over a meeting being held in this manner);
3. It has been further clarified that in a virtual Board meeting, all directors must be able to communicate simultaneously and instantaneously (this confirms that e-mail does not qualify as a way to hold a Board meeting); and
4. Electronic Notices are now the norm (unless an Owner directs otherwise).

If Bill 91 is so absolutely fabulous, why do we only rank it 7.5 out of a possible 10?

Condominium corporations are democratic entitles. Democracy, as we are witnessing first hand, is not only hard work, but also a privilege. Principles that make democracy work, such as having the ability to reasonably participate in a democratic process, should not be taken for granted or applied lightly – both by those in power and by those voting.

The practice of advanced voting has always attracted a degree of controversy. While it was not addressed in the Ontario Government’s Emergency Measures, the practice of advanced voting has become common place.

In general, there are two challenges with advanced voting:

First – was advanced voting legal? The Condominium Act, 1998 (the “Act”) requires attendance be either in person or by proxy. For better or worse, and without any debate on the merits of simplifying the absurdly complicated proxy form (yes, proxies allow for advanced voting) this particular challenge has been put to rest by the addition of section 45(9), which reads: “(9) A person who, through telephonic or electronic means, casts a vote before [the meeting] …is deemed for the purposes of this Act to be present at the meeting.”

However, despite the addition of the above, advanced voting seems to fly in the face of the new section 45(8) which demands reasonable participation by Owners at virtual meetings. Specifically, “A meeting owners held [virtually]…must enable all persons entitled to attend the meeting to reasonably participate.”

“To reasonably participate” are nice words – and are no doubt well intentioned; however, question whether reasonable participation can be achieved in an environment where an Owner who votes in advance of the meeting is deemed to be present at the meeting. Or is reasonable participation limited only to those in actual attendance at the meeting – which could be argued to be the more practical interpretation of this new section.

Advocates of advanced voting/ deemed attendance will raise the point of superior attendance being achieved at meeting – or superior “deemed” attendance. Imagine a 100-unit condo. Attendance at a meeting where advanced voting is used might be 75 or 80% of units. However, when it comes to discussing or debating motions, the number of units actually participating can be ridiculously low. Those who vote in advance, it seems, may not feel compelled to attend and participate at the meeting.

With advanced voting, owners are being encouraged to vote – they are not being encouraged to participate. Voting in advance of the meeting implies voting before

• the wording of the motion has even been made;
• there has been any discussion or debate on the motion; and
• there has been any consideration of an amendment to the motion.

Owners who are not in actual attendance do not take part in procedural motions, or even ballot votes when same is demanded.

None of this is taken into consideration – should it have been?

It is sometimes considered that success in holding a meeting is achieved when the Board is able to get through the business of the meeting quickly, with very few questions to answer; however, neither is correct, and neither advances the interests of a democratic entity - a condominium or otherwise.

We have always had the ability to vote in advance. It is called a proxy. With the amendments to the Act that were introduced on November 1, 2017, an onerously complicated proxy form was forced upon condominium communities. A person appointed as a proxy stands in for the Owner and can participate, debate and vote on behalf of that Owner. Advanced voting where an Owner is only deemed to be in attendance, misses the mark.

Rather than fix the problem with proxies, Bill 91 introduces a new concept that only offers lip service to the ideal of reasonable participation at meetings by Owners. Query, however, if the opportunity to participate is all that is required – the rest is up to the Owner that is willing to participate. You can lead a horse to water…

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Maria Durdan B.A., LL.B., ACCI SimpsonWigle LAW LLP

Richard Elia LL.B, LL.M.(ADR), ACCI Elia Associaties PC