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

The NEW PROCESS for Owners’ Meetings

meetingThe 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.  Continue reading

Turn-over Meetings: From Developer to Owners

stencil.default (35).jpgDevelopers have several obligations post-registration of a condominium, such as appointing a board of directors and the auditor, collecting fees, obtaining insurance, and registering the proposed by-laws. There are other tasks, such as arranging for a reserve fund study, performance audit, or repairs/maintenance, that might arise depending upon how long the developer controls the first board.

The developer must also call a meeting of owners on the later of the 30th day after 20% of the units have been transferred and the 90th day after the developer has first transferred title to a unit. At the meeting, the owners (other than the developer) may elect two new directors.  The meeting is not required if a majority of the units have been transferred and a meeting has been called to relinquish control to the owners (called the “turn-over meeting”). The turn-over meeting must be called within 21 days of the developer transferring a majority of the units and held within 21 days after it is called.  Continue reading

The New Owner Occupied Position

Another interesting change coming is the replacement of the owner-occupied position on the board with the reserved position for owners of non-leased voting units. The term non-leased voting unit doesn’t seem much clearer than owner-occupied position, but maybe the change will reduce confusion about who is eligible to vote for the position (as opposed to who can be a candidate for the position).  Continue reading

Recap – Motions at Meetings

motions.jpgIt is AGM season again. Rather than re-invent the wheel, I decided to highlight a post from two years ago about motions at meetings using Robert’s Rules of Order. I posted a Chart that I had made summarizing the motions that I see most often at condominium meetings.

I hope this helps with your AGMs. Please feel free to contact me with questions or if you would like me to present to your organization.

Recap: Requisition Meetings

meetingI’ve had a few questions about requisition meetings recently so I thought I would take some time today to make a few comments about them.

First, a requisition does not always mean that the owners distrust the board or think they are doing a bad job. Often, in my experience, the owners simply want more information than they feel they have been given. Sometimes the information requested was previously provided to the owners, which can be a big source of frustration for directors and managers. Try not to take it personally. The information may have been misplaced or forgotten, or they may not have understood the information provided and need clarification. Whatever the reason, consider the meeting an opportunity to discuss issues and find creative solutions to problems.

Second, preparation is the key to a successful requisition meeting. There is nothing more frustrating to the owners than attending a requisition meeting only to find the board does not have answers to any of the questions asked by the owners in the requisition. This will lead to a heated and lengthy meeting. Take a few hours before the meeting to review the relevant documents, talk to the necessary contractors or professionals, and consider preparing any visual aids or handouts that might assist.

Third, pick a venue that works well for a requisition. If the requisition is likely to result in a volatile meeting, such as where the removal of directors is sought, pick a neutral location such as a common room or your local library. Don’t hold the meeting in an owner’s unit. Also, consider if security guards or off-duty police should be hired for the meeting to ensure that all attendees are safe. This shouldn’t be necessary for most meetings, but I have been to meetings where I was glad they were there!

Finally, consider if other people, such as contractors and professionals, should be invited to the meeting. If the requisition mentions issues with a major repair project, it might be a good idea to have the engineer present. Sometimes a lawyer might be a good idea, such as where there are complex legal issues to discuss, but other times the lawyer’s presence might create a hostile environment for the meeting. It isn’t necessary to have a lawyer attend or chair the meeting; the lawyer should only be invited if his or her presence will assist in some way.

For more information, see my previous posts on requisitions:

 

Requisitions – not all bad

We want to remove the board because we want to fire the manager

Changes are Coming – Requisitions