The first phase of amendments to the Act has been in force for almost a month now. We have new forms, a new tribunal, and the CAO. There is a new process for calling and holding meetings. There are new information certificates. The changes span hundreds of pages so, understandably, everyone is still getting the hang of it all. There are even disputes about how certain parts should be interpreted. Here are some of the most common mistakes or misconceptions that we’ve encountered so far:
Myth: The changes related to meetings do not come into force until 40 days after the amendments came into force (November 1, 2017).
Truth: The regulations contain transitional provisions that delay the implementation of some of the changes for 40 days where notice of the meeting has not been sent to the owners, but some of the changes came into force on November 1st. What is delayed? The requirements for the preliminary notice, notice of meeting, and disclosure by candidates; the reduced quorum levels for third and subsequent attempts to hold some meetings; and the lower voting thresholds for certain types of by-laws.
More importantly, what is not delayed? The prescribed proxy forms. Legally speaking, the owners should be using the new prescribed proxy form at meetings. Practically, if the condominium sent out the old form in the notice package before the changes came into force the chair should not, in my opinion, refuse the proxy simply because it is the old form. Newly elected (or appointed or acclaimed) directors must complete the training within six months of the election (or appointment/acclamation).
Myth: The condominium has 30 days after the 1st and 3rd quarters to send out the periodic information certificate.
Truth: I’m not sure where this misconception originated from, but it appears to be widespread as I’ve heard it at courses and read it in blog posts. The regulations actually state that condominiums have 60 days after the 1st and 3rd quarter to send the PIC, not 30 days.
Myth: There will be a prescribed disclosure form for candidates running for the board of directors.
Truth: This is another one that was discussed over the last few months. Maybe everyone just assumed that there would be a prescribed disclosure form since there are new forms for so many areas. There is no prescribed form. Many law firms have prepared one for use by their clients. (Feel free to contact us if you would like to see our form).
Myth: If we sent notices by electronic means in the past we don’t need the owner (or mortgagee) to fill out the Agreement to Receive Notices Electronically if they previously agreed to receive notices that way.
Truth: The Act and regulations require the Agreement to Receive Notices Electronically form to be used unless the requirements in the regulations are followed, which is unlikely since the agreement must contain: 1) the name of the owner or mortgagee; 2) a statement of the methods of electronic communication that the board has decided the corporation may use; and 3) a statement indicating that the owner or mortgagee agrees that service in that manner is sufficient for the purposes of the Act. In most cases, it will be best to get the prescribed form signed by the owners to avoid any argument that the agreement between the condominium and owner is deficient.