The pandemic has forced all of us to make dramatic changes in our personal and professional lives and condominium corporations are no exception. Board members, managers and unit owners have been forced to fundamentally change how they go about conducting business in their communities—holding meetings in person is no longer feasible, nor is expecting owners to cast their votes in person. Both activities are simply too risky in our current pandemic state.
One of the major changes that occurred last year was the move from in-person owners’ meetings to on-line virtual meetings. The transition to virtual meetings has, for the most part, been successful, with increased attendance, participation and smoothly run meetings.
New meeting and voting procedures
For board members, many have handed over the role of chair for their first virtual owners meeting to either legal counsel or management who may be more familiar with the process. Chairing a virtual meeting and using electronic voting takes a bit of familiarity with the meeting and voting platforms. Taking the time to develop the on-screen presentation or agenda and working with the service provider ahead of the meeting to determine how motions will be handled and the respective roles of the panel members vs. the service provider will go a long way in having a very successful meeting.
For managers, the tasks to be performed have slightly changed. Managers will often be the point person with the third-party voting provider and will need to put together various unit owner lists including owner occupant and arrears information well before the meeting date. Notice packages will also require modification to the standard in-person format so that owners will understand how registration, attendance and electronic voting will occur.
For owners, the process for registration and voting is simplified and electronic voting can occur without attending the meeting. This means that proxies are no longer required. A welcomed change.
Advance electronic voting
Advance electronic voting occurs when voting is open ahead of the meeting. This is different from real-time electronic voting, which occurs during the meeting. Both forms of voting can be used together at a virtual meeting. If an owner votes in advance of the meeting, his or her vote can be changed at any time, even during the meeting in real time.
Advance voting is an alternative to completing proxies. Since advance voting counts towards quorum and an owner does not have to attend the meeting for their advance vote to count towards quorum, there is no need to gather proxies ahead of time.
Quorum is not just determined by those who attend/log-on to the virtual meeting or those who provide proxies. Advance electronic voting also counts towards quorum, even if the owner does not attend the meeting.
The Condominium Act does not deal with the use of proxies for virtual meetings, leaving condominium corporations to develop their own rules about whether proxies should be used for virtual meetings and if they are, how proxies will be handled. Corporations can establish their own proxy rules by including proxy use and registration provisions in a virtual meeting and electronic voting bylaw.
Practically, there is no need for proxies to be used for virtual meetings. If an owner cannot access the internet, does not have an email address or just wants someone else to attend/vote on his or her behalf, the owner can provide management with another person’s email address and that person can vote electronically or attend the virtual meeting without the need for a proxy form to be completed.
Careful consideration should be given to the use of proxies with electronic voting, as this may result in double counting and inaccurate voting results if not handled correctly.
In addition, if paper proxies are used with electronic voting, managers are usually given the responsibility of collecting and assessing paper proxies ahead of the meeting so that they can determine what information to give to the electronic voting providers—something that the CMRAO would likely not intend that managers be involved with and would discourage this type of activity, given a manager’s role as a “neutral administrator”.
Nominations from the floor
With electronic voting, nominations can still be done from the virtual floor and the electronic ballot can be modified in real time by the voting provider to add additional candidates from the floor. Any owners voting in advance can change their vote right up to the close of vote at the meeting. Depending on which voting service provider you use, all unit owners, whether they are in attendance or not, can vote for a candidate nominated from the floor. Virtual meeting and electronic voting bylaws may set out the procedure for nominations and voting protocol.
Advance votes can be used for adjourned meetings. Depending on when the reconvened meeting is to be held, electronic voting can remain open until the vote is closed at the reconvened meeting. This gives owners more time to vote and will often result in the successful approval of votes such as bylaws.
Virtual meeting and electronic voting bylaw
Up until May 31, 2021, condominium corporations can hold virtual meetings and use electronic voting, without a bylaw. However, after May 31, 2021, those corporations that do not have this bylaw will be permitted to hold only in-person meetings with paper ballots and proxies. Many corporations are adding this bylaw to the agenda for their AGMs or holding special meetings prior to May 31, 2021 so that at least there is the option of holding owners’ meetings virtually in whole or in part, or using electronic voting with an in-person meeting.
The bylaw itself should contain provisions dealing with the process of nominations, advance voting, adjournments and proxy use.
What’s In Store For 2021?
There is no doubt that those who have conducted their virtual meetings and/or used electronic voting are seeing the benefits with little downside. Of course, whether condominium corporations continue to hold meetings virtually and/or use electronic voting will be up to each corporation.
Coming in January 2021 there will be more ways for owners to have access to voting without attending the meeting. For those owners who do not have email addresses in order to receive electronic ballots and do not have access to a smartphone, tablet or a computer, voting can now be done through telephone voting.
This means that those owners who had previously completed proxy forms in advance of the meeting because they did not have an email address can vote directly in advance of the meeting or in real time. Similar to advance voting, they will also be able to change their vote at any time, prior to the close of the vote, simply by voting on their phone. This gives all owners access to voting directly for themselves, whether they attend a meeting or not.
What we have seen during the pandemic is that electronic voting addresses voter apathy, by making the voting process more accessible and user friendly. By doing so, there is no longer difficulty in obtaining the quorum needed to conduct owners’ meetings. In addition, owners voting directly for themselves will address the issues that we have had in the past, such as those contentious proxy battles stemming from proxy irregularities, including fraud, as well as errors by owners in completing proxy forms and errors by the corporation in determining the validity of proxies.
There is no clear description as to what exactly a hybrid meeting is. Presumably it is a combination of an in-person and virtual meeting where both electronic and in-person paper ballot voting is permitted. Combining these two forms of meeting will require a well-organized process ahead of the meeting and may be quite costly.
What is clear is that condominium corporations will continue to hold their meetings virtually and/or use electronic voting and the new telephone voting process in 2021. In the meantime, for those condominium corporations that do not have a virtual meeting and electronic voting bylaw now is the time to start thinking about adding this item to your agenda of your next meeting prior to May 31, 2021.
Denise Lash is a principal of the condo law firm of Lash Condo Law and founder of CondoVoter (www.condovoter.com), a virtual meeting and electronic voting provider. Denise writes a weekly blog on condo issues facing our condo communities. For info visit www.lashcondolaw.com