Government Will NOT Provide Further Extension to Deadlines to Hold AGMs

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The Ontario Government recently confirmed that it will NOT make further amendments to the Condominium Act, 1998, to permit condominiums to defer their annual general meetings beyond the deferral period that was previously granted during the declared emergency period. In part, the release stated:

Annual meetings are an essential component of the democratic functions and self-governance of corporations. They also represent an important opportunity for owners, members or shareholders to raise issues and to monitor the fiscal health, performance and governance of their corporations. As such, there will be no further extensions of annual meeting timelines.

While deferring the AGM made sense for a period of time while we assessed the situation, AGMs should not be deferred for several more months or possibly years while we wait for the pandemic to end. We need to adapt to the new normal. As such, condominiums must hold their AGMs in the prescribed time (see our previous post for more information on the deadlines: https://ontcondolaw.com/2020/07/30/end-of-the-declared-emergency-your-most-common-condo-agm-questions-answered/).

The Government did hint that they are considering extending the temporary amendments to permit virtual meetings and electronic voting to continue longer than the current period without a by-law. The release stated:

In order to ensure that corporations continue to be able to conduct meetings while protecting the health of Ontarians, the ministry is exploring changes that would extend the in-effect period of the temporary amendments related to virtual meetings and will communicate further updates as appropriate.

We understand that most of the virtual meeting providers are booked solid until 2021 now with all of the condominiums in Ontario moving to a virtual meeting for their AGMs and other meetings. Given the limited availability of the virtual meeting providers, hopefully the Government will consider some other potential solutions, such as formally recognizing “proxy only” meetings as appropriate for less controversial business.

For condominiums with deadlines approaching and no virtual meeting providers available to host the meeting, you can consider hosting the meeting on your own (or with the assistance of your lawyer or manager) or finding a venue to host the meeting in person with physical distancing requirements maintained. For larger condominiums, neither of these solutions is ideal, but both can work with a little extra effort.

Stay tuned!

WARNING! At Capacity for 2020

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This post will be a short one. I wanted to let people know that many of the companies offering virtual condominium hosting services are almost booked for the remainder of 2020 for hosted events (i.e. with moderators). Some of the providers have other options available (i.e. online proxies, electronic voting only, no moderator), but you’ll want to reach out to your providers ASAP if you are looking for a full package. There may be capacity issues for some of the alternatives as well, so it is best to get your AGM scheduled ASAP if you haven’t done so yet. Continue reading

End of the Declared Emergency: Your Most Common Condo AGM Questions Answered

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As you probably know, the declared emergency in Ontario came to an end on July 24, 2020, with the enactment of Bill 195. I’ve received several emails and calls today from clients looking for advice on what Bill 195 means for condominiums. The most significant concern seems to be the requirement for holding AGMs and the temporary extensions for holding AGMs that were provided for in Bill 190. Today I’ll answer a few of the most common questions. Continue reading

Guest Post: Dawn of the Virtual Meeting

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Written by: Noah Maislin, CEO, Minutes Solutions

http://www.minutessolutions.com

Effectively operating a condominium is a juggling act at the best of times. In a few short weeks, COVID-19 has utterly upended our world: keeping all the balls in the air is now trickier than ever.

The Ontario government recognized that property management companies are essential to the health and safety of condominiums by allowing the firms to stay open for business during this global pandemic.

But how do you ensure a community runs smoothly in the new reality of social distancing and self-isolation when a best practice of good condominium management is holding regular meetings with quorum? Without hashing it all out in person, how does a board and its management team collaborate to pick contractors for repairs, ensure completion of urgent work, set timelines, monitor finances, develop budgets, protect the health and safety of residents and staff, pinpoint priorities, address resident concerns, and so much more?

Condominium life doesn’t get put on hold during a worldwide health crisis: if anything, clear communication and nimble decision-making become paramount when the global situation and business landscape can change hour by hour. Add to the mix the spring AGM season and the challenges may seem insurmountable.

Enter virtual meetings: in this emergency, the infrastructure that developed in recent decades has stepped into the breach. When stakeholders can’t be in the same room, connecting remotely is an excellent alternative that still enables all parties to engage and collaborate — even face-to-face — without missing a beat. Typically, the Ontario condominium legislation permits digital or electronic board meetings (e.g., by video or teleconference) as long as all directors consent and are able to communicate at the same time. However, the legislation was recently amended (as of April 24, 2020) to allow board meetings to be called and held virtually, even if not all directors consent.  It also allows for AGMs to be held virtually, regardless of what the corporation’s by-law permits.

From the tens of thousands of hours of in-person and virtual meetings Minutes Solutions has serviced, we have come away with some insights about remote communication:

  • The Difference Between Videoconferencing and Teleconferencing: Most organizations that are accustomed to working with their teams in-person prefer videoconferencing over audio-only calls. Video isn’t difficult to use and it more easily facilitates social learning and focus even while working remotely. It can also be preferable for tallying votes when a motion is presented at a meeting and for keeping track of who says what. But make no mistake, making decisions and taking action by teleconference are still preferable over not acting at all merely because an in-person meeting isn’t possible.
  • The Top Platforms — Zoom vs. Google Meet vs. GoToWebinar: All three platforms can support dozens of attendees at a time, enable screen sharing, and offer good connectivity. All that’s needed are a decent Internet connection and a functional device. Zoom is easy-to-use, intuitive, and simple to schedule. Google Meet is a smooth transition for users of other Google products. GoToWebinar is the best tool for polls, voting, and obtaining attendee reporting/analytics (better for AGMs, not board meetings).

  • Your Recording Secretary Can Still Attend Your Meeting Virtually: As always, proper documentation creates continuity for a corporation as it navigates all the decisions and tasks involved in managing a condominium. Your minute taker can log-in or dial-in to take minutes live, or can complete the minutes offline from a recording. All the above videoconferencing options can also record your meeting; if you go this route, make sure your team consents to your policies for recorded meetings and understands the privacy considerations.

While it’s true there can be an initial learning curve in adapting to new technology, the pandemic has highlighted the convenience and efficiency of virtual meetings, not just when social distancing is required. When calmer times return, remote, live communication will complement in-person meetings, and may even replace them in some situations.

Virtual solutions expand the business landscape by offering further options for following best practices in condominium management and for tackling new challenges creatively and collaboratively.

Latest Order Allows Virtual Condo Meetings

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One of the busiest times of year for annual general meetings (“AGMs”) normally begins in mid-April and lasts until the end of June. This period of time is normally when condominiums with December 31 year-ends hold their AGMs. Unfortunately, many condominiums have been unable to hold their AGMs due to COVID-19.  Often the directors felt like they were being forced to decide which way they wanted to contravene the Act: hold the AGM using virtual meetings even though the condominium did not have a by-law permitting virtual meetings, or postpone the AGM and contravene the requirement to hold the meeting within six months of the fiscal year end.  Not an ideal situation.

Fortunately, on Friday April 24, 2020, the Ontario government issued an Order to provide some temporary relief to condominiums struggling to make these tough decisions. The Order makes various amendments to the Condominium Act, 1998, with respect to meetings of the owners and of the board to make it easier to hold virtual meetings. A copy of the order can be found here: https://files.ontario.ca/solgen-oic-meetings-for-corporations.pdf Continue reading

AGM: Apathy, Gossip and Mutiny

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The AGM is often the most important meeting of the year for a condominium. The AGM provides the owners with valuable information about the condominium’s affairs with presentations from the auditor, board, management, and other professionals. It also gives owners an opportunity to voice their concerns or ask general questions about issues that might be important to them, like upcoming repair projects, parking, or landscaping. Finally, the AGM allows owners to be involved in important decisions, such as electing directors or passing a new by-law.

Most AGMs go off without a hitch and everyone goes home happy and informed. Some, however, are long and arduous battles that leave people more confused than when they started. The battles are often caused by apathy, gossip or mutiny. Continue reading

Tips for Owners Requisitioning Meetings

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Requisition meetings can be a source of anxiety for many directors, managers, and owners. In my experience, the conduct of the parties during the preliminary steps of the requisition process can exacerbate the anxiety and cause a great deal tension, hostility, and bickering at the meeting. We previously wrote about the requirements for requisition meetings (here) and the practical tips (here) for condominiums in responding to requisition requests. Today, I thought that I would share some tips for owners requisitioning meetings. Continue reading

Looking Back on 10 Decisions of 2018

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Below is a brief look back at some of the most talked about cases in 2018:

Metropolitan Toronto Condominium Corp. No. 932 v. Lahrkamp, [2018] O.J. No. 311

A unit owner had commenced many legal proceedings against the condominium corporation for approximately 10 years relating to the production of documents – many of these proceedings were dismissed.  The condominium corporation successfully applied to the Court to have an order prohibiting the owner from commencing legal proceedings against the condominium corporation and its past, present, and future directors, property managers, and service providers without leave of the Court.  Note that the unit owner was not prohibited from bringing legal proceedings before the Condominium Authority Tribunal (“CAT”) and did so later in 2018…the owners application before the CAT was dismissed.

Jones v. 2341464 Ontario Inc., 2018 ONSC 717

A developer/vendor attempted to unilaterally terminate an agreement of purchase and sale for a pre-construction condominium unit due to delays in construction.  The Court found that the provisions in the agreement of purchase and sale that allowed the developer/vendor to unilaterally terminate the agreement of purchase and sale had been removed by a valid amendment and that the developer/vendor was required to perform its obligations set out in the agreement of purchase and sale.

Simcoe Standard Condominium Corp. No. 431 v. Atkins, [2018] O.J. No. 2986

Two condominium corporations were ordered to call requisitioned meetings of owners because of a special assessment levied by the condominium corporations. The condominium corporations had refused to call the meetings of owners because they alleged the requisitioning owners had obtained the necessary signatures to requisition a meeting of owners by disseminating misleading information.  The Court was not persuaded by the evidence presented to support such an allegation and found no reason for the condominium corporations to refuse to call meetings of owners in accordance with section 46 of the Condominium Act, 1998.  Further, the condominium corporations asked the Court to prohibit the use of proxies during the requisitioned meetings of owners as a result of the dissemination of misleading information. The Court refused to do so finding that the communications were not misleading but rather expressed an opposing view. The Court also questioned if it had authority to “deny owners the statutory right to vote by proxy.”

Janet Cangiano v Metropolitan Toronto Condominium Corporation No. 962, 2018 ONCAT 7

A unit owner had requested to audit the proxies recently used to elect directors to the board of directors without redaction. The CAT refused the request of the unit owner as clause 55(4)(d) of the Condominium Act, 1998 provides that the ability of an owner to examine the records of the condominium corporation does not apply to “any portion of a ballot or proxy form that identifies specific units in a corporation or owners in a corporation unless a by-law of the corporation provides otherwise”.

Peel Standard Condominium Corporation No. 984 v. 8645361 Canada Limited, 2018 ONSC 4339

After obtaining an order prohibiting a commercial unit owner from harassing the condominium corporation’s board members, employees and managers and multiple orders from the Court, the condominium corporation successfully obtained an order requiring the owner to vacate and sell the commercial unit for any reasonable offer.  The Court also granted the condominium corporation the ability to apply for possession of the commercial unit if the owner did not comply with the conditions of the Court’s order.

Toronto Standard Condominium Corporation No. 2256 v. Paluszkiewicz, 2018 ONSC 2329

A condominium corporation asked the Court to set aside the decision of an arbitrator with respect to the validity of improvements made to a unit authorized by a section 98 agreement. The section 98 agreement was authorized by the declarant appointed board and called for the production of detailed drawings and further approval of the board prior to renovations commencing.  The owner argued the required plans were submitted to the declarant appointed board provided and the evidence of the condominium corporation was not sufficient to persuade the Court to set aside the decision of the arbitrator.

Patterson v. York Condominium Corporation No. 70, 2018 ONSC 3735

The Court dismissed an owner’s effort to force the condominium corporation to raise the common expenses, among other requests.  The Court found that the decision process of the board of directors met the standard of care required under section 37 of the Act and that the Court should not substitute its own reasoning for that of the board of directors.

Noguera v. Muskoka Condominium Corporation No. 22, 2018 ONSC 7278

An owner had commenced construction to remove a demising wall between units with the board or director’s permission.  A subsequent board of directors asked for the owner to enter into a section 98 agreement and wanted to review/alter the decision and decision making process of the previous board of directors.  The owner brought an oppression and was permitted to complete construction but was required to enter into a section 98 agreement.

Terence Arrowsmith v Peel Condominium Corporation No. 94 2018 ONCAT 10

An owner made a request for records relating to the removal of mould from the sauna and mailroom.  The condominium corporation did not provide the requested records despite conceding the owner was entitled to such records on the basis that the owner had not properly completed the mandatory request for records form.  The CAT ordered the documents to be provided and award costs (which included an award for the owner’s time spent participating in the process) to the owner. The CAT also went on to impose a monetary penalty on the condominium corporation as a result of its failure to provide records without reasonable excuse.

Voting by show of hands

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At most condo meetings voting for procedural matters, such as to approve the minutes or adjourn the meeting, is typically done by show of hands. Other matters, such as voting on by-laws or rule changes, substantial changes to the common elements, or the election or removal of directors, are done by ballot and proxy. Does it always have to be this way? Can a show of hands be used for an election? What about a vote on a new by-law? Continue reading

Amendment Issue: Requisition Meetings

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I previously wrote about the changes coming to section 46 of the Act related to requisition meetings (https://ontcondolaw.com/2017/03/27/changes-are-coming-requisitions/). To recap, the biggest changes are: 1) a prescribed form for requisitions; 2) a prescribed process for communicating with the requisitionists; 3) a longer period of time to call and hold the meeting; and 4) the elimination of the owners’ right to call the meeting if the condominium refuses to do so.

The changes to section 46 of the Act that address requisition meetings have not yet come into force and a date has not been released. This means section 46 (as it was prior to the amendments) continues to apply while other related changes have been implemented, such as those for calling and holding meetings of the owners. Therein lies the problem. Continue reading