COVID-19

March 15, 2020 Published by CCI National - By Nancy Houle - Davidson Houle Allen LLP

Coronavirus (COVID-19) and Condos – Update on Meetings

As the number of COVID-19 cases increase across the country, and each municipality grapples with how best to deal with the rapidly evolving situation at a local level, the most common recommendation we are seeing to help mitigate risk and spread is social-distancing. The natural question is, therefore, what does this now mean in relation to a condominium corporation’s legal obligation to hold board of directors, or owners, meetings.

As the number of COVID-19 cases increase across the country, and each municipality grapples with how best to deal with the rapidly evolving situation at a local level, the most common recommendation we are seeing to help mitigate risk and spread is social-distancing. The natural question is, therefore, what does this now mean in relation to a condominium corporation’s legal obligation to hold board of directors, or owners, meetings.

In our blog issued on March 12th, (link here), we provided a link to the Public Health Agency of Canada’s recently issued guideline for risk-informed decision-making in relation to mass gatherings during the Covid-19 outbreak (link here). For those municipalities where gatherings do not present an ongoing risk, we continue to recommend that you consider the risk factors outlined in the guideline in order to determine whether or not to proceed with any gathering, which includes a meeting of the board or a meeting of owners.

However, for many communities across the country, the recommendations are to avoid public gathering.

As of March 15th, Ottawa Public Health’s (OPH) Medical Officer of Health, Dr. Vera Etches, has urged residents as follows:

• strengthen their social distancing measures”;

• cancel any planned events or gatherings of all sizes; and

• “not go out for non-essential reasons.”

Board of directors, and owners, meetings would fall squarely within the nature of planned events or gatherings. At this time, therefore, it appears that such meetings (in the Ottawa region) need to be postponed if they cannot be held by other means (i.e. by way of proxies or other forms of electronic or videoconferencing). Fortunately, with current technological means – and creative and effective communication – urgent matters which were to be decided at upcoming meetings can still move forward without the necessity of a full scale physical meeting. Board’s facing such a situation can dialogue with their management team or legal counsel to consider the options which may be available.

Our firm wholeheartedly supports and confirms the right of condominium Boards to cancel or postpone all gatherings of more than five persons, if the Board concludes that this is the best thing to do for the safety and well-being of the members of the condominium community and of the society as a whole.

In practical terms, our view is as follows:

1. It is our view that a Board can certainly resolve to hold all Board meetings by teleconference (or similar means of concurrent communication) until, or unless, the Board resolves otherwise. [This is already authorized by the Act if all Directors agree. In our view, this can be required (in current circumstances) if the Board so resolves.]
2. Alternatively (and particularly if meetings be teleconference or similar means of concurrent communication are not a practical possibility for a particular Board), it’s our view that the Board can resolve to suspend Board meetings and instead reach decisions by email exchange between the Board members (on the understanding that such decisions will be ratified by formal Board resolution when the Board next decides to meet).
3. A Board can similarly decide to suspend Meetings of the owners, even if this means that the condominium corporation will (as a result) fail to hold its AGM within six months of the year end (as required by the Condominium Corporation). In our view, the six-month time period can be legally exceeded where the delay is reasonably justified in the circumstances…..and in our view this is such a circumstance.
4. At the same time, we implore condominium Boards to consider all alternative means (particularly electronic means) by which it might be possible to hold the AGM while still avoiding the risks noted above. In our view, this is permitted (in these special circumstances) even if the corporation has not passed a by-law to authorize this. We defer to the Boards and Managers in terms of the practical possibilities to arrange for electronic attendance (ie. to make arrangements for owners to attend electronically….for instance by logging onto a particular platform in order to participate in the meeting “on their home computer”). BUT IN OUR VIEW: As long as you provide advance notice, and as long as there is no objection at the meeting, it is our view that – given the particular global circumstances – such a technical breach (ie. electronic attendance not yet authorized by by-law) would not render the meeting invalid.
5. More generally, it’s our view that the Board can decide to temporarily suspend or prohibit any activities on the property which the Board considers to be unsafe, including private social gatherings, use of amenities, or other such activities that may bring quite large groups of people together.

The bottom line, in our view, is as follows: The Board is best-placed (and is legally obligated) to assess what would be most safe for your community.

In our view, these decisions are entirely up to the Board. And it appears that we’ve come to the point where more and more condominium Boards may well be deciding to suspend or cancel many (if not all) meetings as well as various other types of activities – for the time being. In our view, this is absolutely proper and falls squarely within the mandate of each Board.

Messaging: Communications to Owners

As noted in our previous blog, in times such as these, effective and timely communication within the community can help to provide comfort to owners. An initial message to owners is contained in our previous blog. In the even that you have an upcoming owner’s meeting which will need to be postponed, you can consider including the following revised wording in your messaging to owners:

The Board will also be considering what all of this means for the upcoming meeting of the owners. The Board is reviewing various options for the upcoming meeting, including the postponement of the meeting and options for attendance via videoconferencing and/or other electronic means. We will send a further notice out shortly.

In the meantime, in light of the recommendations from Ottawa Public Health (or Public Health Agency of Canada) urging the cancellation of all gatherings, all gatherings on the common elements are currently prohibited.