The first phase of amendments to the Condominium Act, 1998, came into force on November 1, 2017. While the first phase included amendments to a variety of areas, there were a few areas with significant changes. One of the most significant changes will be to the way we call and hold owners’ meetings.
While much has been written about the new AGM process, it is important to note that the changes to the Act apply to all owners’ meetings (i.e. AGMs, requisition meetings, special meetings) in most circumstances. The transitional provisions are not entirely clear so if you intend to call and/or hold a meeting of owners between November 1st, 2017 and December 10th, 2017, you should speak with a lawyer to see which provisions apply to your meeting.
The first step in calling an owners’ meeting is the “preliminary notice”. The preliminary notice is a prescribed form available here: Preliminary Notice of Meeting of Owners. It includes information about the projected date of the meeting, the deadline for owners to submit information to be included in the notice package, and the purpose of the meeting (i.e. election, requisition, appoint an auditor, or change declaration/bylaw/rules). If an election is to be conducted at the meeting, the preliminary notice must state the total number of directors, the number of vacancies, the terms, and any positions for election by the owner-occupied units (or “non-leased voting units” once those amendments come into force).
The preliminary notice must be sent at least 35 days before the owners’ meeting, but it is not required where the meeting is being called to conduct an election as a result of a loss of quorum on the board of directors.
Submission of Material by Owners
Another prescribed form is the Submission of Material by Owners form available here: Submission to Include Material in the Notice of Meeting of Owners. This form is to be used by owners when they want the corporation to include material in the notice of meeting package to be sent to owners. The owners can also use it to request the corporation include a copy of a record (i.e. by-law) in the package or add an item to the agenda. It is important to note that the corporation is not obligated to include the material received from an owner unless the owners of at least 15% of the voting units sign the form requesting it be included.
If an owner wishes to be a candidate for the board, he or she must complete the new disclosure requirements and submit them to the corporation in writing (if done in advance of the meeting) or make them orally at the meeting. The disclosures made do not equate to disqualifications; the disclosures simply provide owners with more information to make an informed decision. The disclosure form is not a prescribed form. Ask your lawyer for a copy of a sample form if you need one.
Notice of Meetings
The second step in calling an owners’ meeting is the notice of meeting, which is another prescribed form available here: Notice of Meeting of Owners. It includes basic information on the meeting (i.e. the date, time and place), the quorum required, and the nature of the business to be conducted (i.e. election, amalgamation, change to bylaw). It must include information from the owners if they satisfy the requirements described above. It should also include any disclosure statements received from candidates for any position on the board.
The notice of meeting must be given at least 15 days before the day of the meeting and at least 20 days after the preliminary notice is sent. These are minimum periods. It might be wise to give the preliminary notice at least 40 days before the meeting so there is a greater period of time between the cut-off date for submissions of material by the owners and the date the formal notice is sent to the owners.
Note: There is also a notice of meeting where quorum is lost on the board. It is available here: Notice of Meeting of Owners under s.34(5) of the Act.
Quorum at the Meeting
Another big change relates to quorum. Quorum is the minimum number of owners that must be present (in person or by proxy) to conduct a meeting. Effective November 1, 2017, quorum for certain owners’ meetings (i.e. turn-over, AGMs or where elections are conducted or auditors appointed) is 25% of the owners. If quorum is not achieved on the first two attempts to hold the owners’ meeting, quorum falls to 15% on the third and subsequent attempts.
Voting & Proxies
Voting at owners’ meetings may be conducted by show of hands or recorded vote. As of November 1, 2017, a recorded vote may be marked on a ballot cast personally or by a proxy holder, marked on a proxy form, or indicated by telephone or electronic means (if a by-law permits such).
Another change is that the prescribed proxy form is now mandatory for all owners wishing to appoint a proxy. Gone are the days of proxies on the back of napkins or flyers. The prescribed proxy form is available here: proxy_form.
If all of the above was not daunting enough, there are other amendments that will change the way owners’ meetings are conducted. For example, if an owner puts his name forward at the meeting, he must satisfy the disclosure requirements. This is to be done orally at the meeting, but best practices would have the candidate also fill out a form so there is a record of the disclosure in writing. In addition, the by-laws can change some of the amendments. For example, by-laws can add extra disclosure obligations on candidates for the board. The new disclosure obligations, qualifications, disqualifications, and mandatory training should be described before any election.
The chair of the meeting should be prepared to discuss the changes and assist the owners throughout the meeting. It won’t be an easy task, especially with more phases of amendments coming in the next 6-12 months. If you intend to have the corporation’s lawyer chair the meeting (or attend the meeting) you should contact him or her prior to scheduling the meeting as there are sure to be scheduling issues as we receive more requests for our attendance at meetings in the next year or two.