Bill 91

Bill 91: permission given but details missing

Wednesday, November 22, 2023
By Sonja Hodis

No one expects to be grateful for a pandemic. However, condominium corporations and property managers can thank the pandemic for one thing – the modernization of how meetings, voting and service of documents occur for condominium communities in Ontario.

Thanks to the recent permanent changes to the Condominium Act (the Act), courtesy of Bill 91, Less Red Tape, Stronger Economy Act, 2023, which came into effect on October 1, 2023, many of the temporary pandemic-imposed changes, which allowed for virtual meetings, voting and electronic service, have now become something that is permanently permitted without the necessity of a bylaw.

There has also been one new change with the addition of section 45(9), which puts an end to any debate about whether an owner who casts a vote ahead of the meeting counts towards quorum for the meeting.

Below is a summary of the three main areas in which the Act has been permanently changed:

Virtual Meetings – Owners and Directors

Whether the meeting is completely virtual, in person or a combination of both (hybrid), condo corporations can now legally hold a valid owner meeting in any of these formats without a bylaw authorizing it.

In terms of director meetings, they can be held in person, virtually or a combination of both, and the consent of all directors to the format of the meeting is not required. In order for the meeting to be valid, all directors and those participating in the meeting must be able to communicate with each other “simultaneously and instantaneously”. If the meeting is virtual, instructions for how to connect to the meeting and how to vote must be included in the Notice of Meeting.

It is interesting to note that section 45(8) of the Act requires that all owners must be able to reasonably participate, regardless of the format of an owner meeting.

What is “reasonable” participation is not defined in the Act or in Bill 91. Despite this lack of clarity in the legislation, it will be important when planning the format of your meeting to keep this requirement in mind, especially if you are choosing a virtual or hybrid model. It is also interesting to note that this requirement is different from the simultaneous and instantaneous requirement for director meetings. Obviously, the government intended a different standard for director meetings from that of owner meetings as they used different language in the description of the requirements for each.

Only time will tell whether this will have a practical impact or not. Based on the use of the word “reasonable”, it appears that the standard for participating at an owner meeting will be interpreted as something less stringent and more flexible than a director meeting and could be dependent on the community itself.

What is reasonable in one community may not be reasonable in another. Despite the different wording used in the legislation, I see no reason why an owner meeting should not be conducted to the same standard as that required for a director meeting. Would it not be reasonable for an owner, who attends a meeting, to be able to participate at the same time as other owners regardless of how they joined the meeting? One explanation for the difference in standards could be due to the new addition of s. 45(9).

Voting

Section 45(9) is one of new changes to the Act that was not part of the temporary provisions in place during the pandemic. Section 45(9) deems that an owner who casts a vote before the meeting date is to be counted towards quorum as if the owner were present at the meeting.

This change is welcomed as it settles any debate about whether an advanced vote counts towards the quorum requirements for a meeting. However, this change also makes it impossible for owners, who are deemed present at a meeting that they are not physically attending due to casting a vote in advance of the meeting, to participate simultaneously and instantaneously with those who are actually attending the meeting days if not weeks later.

While the amendment in this section clarified the debate on the quorum issue, the legislative changes have fallen short as they fail to address the practical issues which can occur when owners are not in attendance at the actual meeting and have voted in advance of the meeting, such as amendments to motions from the floor, nominations from the floor for candidates, etc.

While advance voting will be convenient and may encourage more participation, owners need to be made aware of the limits of advance voting and should be encouraged to attend the actual meeting, which can be facilitated with virtual or hybrid meetings.

Although advance voting is permitted, condo corporations may want to consider if it makes sense for the particular meeting they are having and may want to set some parameters regarding advance voting in their bylaws.

Section 52(1.1) and (1.1.1) also confirms that voting can take place by a variety of methods or a combination of those methods. Voting can take place entirely by electronic or telephonic means (the definition is now contained in the definition section of the Act) unless the corporation provides for something else in their bylaws.

Section 55(1) has also been updated to deal with record keeping requirements for ballots and proxies. It includes all ballots or instruments appointing a proxy that are submitted for a meeting or delivered before the meeting, including any record of votes cast through telephonic or electronic means both before and after the meeting.

Service by methods other than in person or mail

We all know how difficult it was to obtain the signed agreement to receive electronic notices forms from owners to allow service of documents to owners electronically. This method of service has saved condominium corporations a great deal of money as they did not need to pay for printing and postage costs. Thankfully, the temporary measures, which allowed service by electronic means without the owner’s consent by way of the prescribed form, have now been made permanent.

As such, if an owner provides an email address at any time to the condominium, then the corporation can use email as a way of serving notices or things unless the bylaws say otherwise or the owner has advised in writing that they will not accept notices or things by email.

Electronic means would also allow for service by fax. While many condominiums already ask for the owner’s email address, it would be a good idea for condominiums to send out yearly owner and tenant information forms instructing owners and tenants to provide updated contact information including email addresses.

This will ensure the most current information is always on file should a corporation need to provide notice to a tenant or owner. The email address will become a record of the corporation, but this information is not to be shared with other owners.

While it is great that Bill 91 has given permission to continue to operate in the same manner as during the pandemic, the government has failed to provide the necessary details with respect to process and procedures required to make the concepts of virtual/hybrid meetings, electronic and advanced voting and service by electronic means work in the day-to-day operations of a condominium.

As a result, they are still forcing condominiums to deal with many of the specific details by way of a bylaw amendment. Some corporations have implemented processes and procedures to deal with virtual and hybrid meetings, electronic voting, advance voting and service of notices and updated their bylaws in the last year or two. However, it would be advisable for condominium corporations to speak with their legal counsel about whether an update or further update to the bylaws is required.

For the few condo corporations that do not want to embrace these permanent changes, the Act has allowed them to opt out, but it will require an amendment to their bylaws. Corporations who are considering this should speak to their legal counsel about any concerns. Rather than opting out, the solution may lie in implementing parameters regarding procedure to address your concerns.

Sonja Hodis is a litigation lawyer based in Barrie who practices condominium law in Ontario. She advises condominium boards and owners on their rights and responsibilities under the Condominium Act, 1998 and other legislation that affects condominiums. She represents her clients at all levels of court, various Tribunals and in mediation/arbitration proceedings. She also acts as mediator or arbitrator in condo disputes. Sonja can be reached at (705) 737-4403, sonja@hodislaw.com or via her website at www.hodislaw.com.

This article is provided as an information service and is not intended to be a legal opinion. Readers are cautioned not to act on the information provided without seeking legal advice with respect to their specific unique circumstances. Sonja Hodis, 2023 All Rights Reserved.

Leave a Reply

Your email address will not be published. Required fields are marked *