Scared of Holding Your AGM During a Lockdown?

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Yes. Subsection 45(2) of the Condominium Act, 1998, requires all condominiums to hold an annual general meeting (AGM) within six months of the end of the fiscal year. There are no exceptions as the AGM serves several important functions, such as presenting the audited financial statements to owners and electing directors.

The Ontario government briefly extended the time for holding AGMs for condominiums with fiscal years ending September 30, 2019 to January 31, 2020 because of restrictions on large gatherings, but no further extensions have been made. As a result, condominiums with fiscal years ending February 2020 and later must hold their AGMs within six months of the end of their fiscal year.

There continue to be restrictions on large gatherings and case numbers are increasing again. How can we safely hold our AGMs?

The Ontario government made orders (and later temporary amendments to the Condominium Act, 1998) to permit condominiums to use electronic and telephonic means to hold their meetings even if their by-laws do not permit such. This means that condominiums can hold their meetings in a variety of ways, such as:

  • with the assistance of a meeting host / provider
  • using virtual meeting platforms, like Zoom, Go-To-Meeting, Google Meet, Teams, etc.
  • using teleconference

While the last extension is set to expire on May 31, 2021, it seems likely a further extension will be made until the restrictions on large gatherings are lifted. Alternatively, there is some speculation that the Act may be amended to make these changes permanent. In my opinion, even if a further extension is not made, using electronic or telephonic means to host a meeting may still be preferable to holding an in-person meeting for some condominiums.

The amendments also permit voting by electronic or telephonic means even if the by-laws do not permit such. Depending on the size of the condominium and the nature of the votes to be conducted, the condominium may be able to use the voting features built into the platforms (i.e. polls, show of hands). In some cases, it may be preferable to use a meeting host/provider to assist with the voting process, or at least purchase a voting package to assist with the collection of e-proxies or e-votes.

Some people in the industry, including the Condominium Authority of Ontario (CAO), also support the use of proxy only meetings in some situations (i.e. non-contentious issues). A proxy only meeting is one where the owners are not permitted to attend a meeting in person and all voting must be performed by proxy. I personally question whether requiring owners to vote via proxy is in compliance with the Act, but I understand the logic behind it. As such, a proxy only meeting might be useful if the owners are agreeable to holding the meeting this way and there are no contentious issues to discuss or vote on.

Very small condominiums might be able to conduct meetings in person so long as they can comply with the restrictions on gatherings at the time of the meeting. The most common reason for wanting to host a meeting in person is a perception that people will not be able to participate because they are not familiar with the technology. I have found this to be exaggerated. People have adapted very well and the technology is user-friendly. Holding a meeting in person could exclude people in the same way a virtual meeting may exclude those unable to use the technology as some may be unwilling or unable to attend in person due to the risks of infection.

I acknowledge that access to reliable internet or devices might be an issue for some. If this is a concern, I would encourage the condominium to consider a teleconference as many people can figure out a phone call without much trouble. Alternatively, consider a proxy-only meeting for non-contentious meetings.

As people are vaccinated (at least those who are willing and able), it will become possible to hold meetings in person again. It seems possible that certain parts of Ontario will resume more normal activities sooner than others.

If you have any questions about the best option(s) for holding your AGM you should reach out to your lawyer for an opinion.

How To Make Virtual Meetings Work For Your Condominium

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With no further extensions to the deadlines for holding AGMs, it looks like many condominiums will need to hold their 2020-2021 AGMs using electronic means as in-person meetings continue to be prohibited in most parts of Ontario. There were temporary amendments made to the Condominium Act, 1998 (the “Act”) that permit condominiums to hold their meetings using telephonic or electronic means without a by-law. These temporary amendments might become permanent, but the Ontario government has not yet confirmed its intentions. As of right now, the temporary amendments are set to end on May 31, 2021 and condominiums will need to pass new by-laws to continue hosting their meetings using telephonic or electronic means.

Given that hosting owners’ meetings using telephonic or electronic means (“virtual meetings”) is relatively new to most condo managers, it is not surprising that I have been asked to do a few presentations on virtual meetings over the last year. This post will share a few tips and tricks from those presentations to make your virtual meeting a success.

CALLING A MEETING

Like with in-person meetings, preparation is key to a successful virtual meeting. The first decision to make is how you will hold the meeting. Will you use teleconference or videoconference? I have had only a few clients go with a teleconference, but I have heard that it worked well for smaller condominiums with fewer attendees.

If you plan to hold it with video, will you use a meeting services provider or do it on your own? The Act permits the use of Zoom or Teams (or other similar programs), but it can be more challenging to host larger meetings without the assistance of a meeting services provider to assist with voting or moderating the meeting. The main reason people choose not to use a meeting services provider is the cost. The cost actually varies significantly between the providers and based on the features selected, so I would encourage you to do some research and find the one that is the best for your condominium. Most of the meeting services providers have different options ranging from the collection of e-proxies only to a full services package that includes some or all of the following: e-proxies, e-voting, advance voting, and a moderator for the meeting to help people struggling with the technology.

The process for calling a virtual meeting is the same as for in-person meetings with a few minor tweaks to the preliminary notice of meeting and notice of meeting packages. A cover letter to the preliminary package explaining the technology to be used at the meeting helps owners research the technology in advance of the meeting, which can reduce anxiety about the technology. It also gives you an opportunity to highlight any special deadlines that the condominium may not normally have with in-person meetings, such as a deadline for the delivery of paper proxies (more on this below).

Lastly, one of the biggest changes to the process for calling a meeting is that the temporary amendments to the Act permit condominiums to use electronic means to deliver notices to owners and mortgagees, even if they have not consented to such means. “Electronic means” includes a variety of options, but is most often via email. If you do not have an email address for an owner you should find an alternate means of delivery, such as via regular mail to their address for service.

HOLDING A MEETING

There are a few similarities between in-person meetings and virtual meetings. For instance, the order of business in the agenda is normally the same with minutes of the last AGM being one of the first items, followed by the auditor’s presentation, and then elections near the end. In some situations it might be appropriate to move an item up in the agenda to give attendees more time to cast their votes.

Another similarity is quorum. Quorum for most meetings is still 25% of the owners who are eligible to vote. In addition to those in person or represented by proxy, owners who use telephones or electronic means or advance voting also count towards quorum for a virtual meeting.

One of the challenges with virtual meetings is confirming the identities of those in attendance at the meeting. The name shown may not be the person’s proper name. For example, often the name will be the brand and model of the phone used to connect to the meeting. This could be anyone. If you use a meeting service provider they will normally take care of confirming identities for you. If you go it alone, you’ll need to find a way to do it yourself. There are different ways to ensure that only those entitled to attend are able to log into the meeting, for example, you can use the registration option in Zoom. If you have a small number of units you could do a roll call and rename the attendees with their unit number or name.

One of the benefits of virtual meetings is the ease of control over attendees, especially when attendees do not have the ability to unmute themselves. Using the Q&A or chat features of the virtual meeting can make it easier to stick to the agenda. If you choose to permit owners to speak at the meeting, I recommend that you set clear ground rules like you would with in-person meetings.

VOTING OPTIONS

It is important to explain the voting options early so owners understand their options. Ideally, the preliminary notice of meeting would explain the technology that will be used to capture votes (i.e. proxies, e-voting during the meeting, advance voting, show of hands). Explaining the options allows owners to explore the options and choose the one that they are most comfortable with. It also ensures that people are not surprised to find out at the meeting that they cannot vote in the manner they planned to use.

Voting by paper proxy can be challenging with a virtual meeting for a variety of reasons. For one, it is harder to ensure that proxy holders are counted toward the proper number of votes if using the raise hand or polling features within Zoom as they would only be counted as one vote. This can be avoided by using e-votes for all motions, but this takes extra time as people have to go to their email and vote each time. Another challenge with paper proxies is that it is harder to review paper proxies during a virtual meeting with the scrutineers. A breakout room can be used, but it takes a lot longer to review paper proxies using a screen sharing feature than it would in person (especially if each proxy is a separate file). Setting a deadline for paper proxies to be received allows the manager to review the proxies, organize them, and create a summary of the results. This could be reviewed with scrutineers in advance of the meeting to speed up the process during the meeting, but it will need to be reviewed to ensure those attending in person to vote or using e-voting are not counted twice with any paper proxies they submitted.

While it can seem daunting to host your first virtual meeting, I have heard mostly positive remarks about the experience from clients after the meeting. Some still prefer in-person and will use virtual meetings only as long as it is necessary, but some have indicated that they may continue to use virtual meetings for some of their meetings in the future. Some have even stated that they plan to investigate hybrid options with in-person meetings with some attending via electronic means or casting e-votes.

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!