June 20, 2023
Back in April, we published a blog detailing proposed changes to the Condominium Act (the “Act”) that sought to give condominium corporations increased flexibility in relation to electronic voting, virtual meetings, and the electronic delivery of materials.
We can now report that Bill 91: “Less Red Tape, Stronger Economy Act, 2023” (“Bill 91”), has received royal assent. This means that as of October 1, 2023, the Act will be amended to (amongst other things):
- Facilitate the transmission of notices and other condominium documents virtually;
- Allow corporations to conduct virtual/hybrid meetings and conduct voting either virtually or in hybrid form;
- Replace temporary provisions of the Act that permitted virtual meetings, and the electronic voting and delivery of meeting materials which are set to expire on September 30, 2023.
We note that, though these changes officially come into effect on October 1, 2023, they are currently permitted by temporary provisions of the Act (which expire on September 30, 2023).
As mentioned, the most notable amendments introduced by Bill 91 relate to virtual meetings and electronic voting/delivery of meeting materials. Specifically, the amendments will permit owners’ meetings and board meetings to be held either completely virtually, or in “hybrid” format (without any requirement for a by-law to authorize this). Hybrid meetings occur when there is a mix of persons attending both in-person and virtually. The amendments will also allow owners to vote on matters electronically, and allow condominium corporations to deliver materials (such as meeting notices) electronically (again, without any requirement for a by-law to authorize this).
You can review the entirety of Bill 91 here. ‘Schedule 7’ contains the “highlights” of the coming amendments to the Act, which we have summarized below.
Changes to Owners’ Meetings
The amended Act will allow owners meetings to be held in virtual or hybrid format, so long as owners are able to “reasonably participate” in the meeting. Notably, there is no definition of “reasonable participation” included in Bill 91.
Should the meeting proceed virtually, the notice of meeting is not required to specify a place of the meeting (given that it is held “virtually” through a video conferencing platform such as Zoom).
As noted above, these procedures will no longer require a by-law. Even so, one helpful clarification that in our view could be included in a by-law would be a provision stating that it’s up to the Board to decide how a particular meeting will be held (whether virtual, in person or hybrid) and how voting will occur at the meeting.
Changes to Board Meetings
Board meetings will also be permitted to be held virtually or by hybrid means. Virtual/hybrid meetings will be permitted so long as directors can “communicate with each other simultaneously and instantaneously.”
The amended Act also removes the “unanimous consent” requirement to initiate virtual/hybrid board meetings. So long as your condominium’s governing documents do not have a by-law requiring such, virtual board meetings can proceed without obtaining the consent of all directors.
Changes to Voting (Allowing for Electronic Voting)
The amended Act allows owners to vote either electronically, in-person, or by proxy. Electronic voting can be completed via telephone, fax, or electronic balloting software such as ‘GetQuorum.’ The corporation’s records must also include a record of any votes cast at meetings, regardless of how the vote was cast (i.e. electronically, in-person or by proxy).
Notably, the amended Act allows persons to attend a meeting of owners by voting in advance. In our view, the key concern with this change is as follows: How will an advanced vote count in relation to motions to amend and in relation to amendments to the business (including new nominees for election)? In some cases – depending upon the nature of the business – advanced voting may or may not make sense, and in any event may require careful handling.
Notifying Owners Electronically
The amendments allow condominium corporations to deliver meeting notices and other materials to owners electronically, subject to any by-laws that prohibit it and so long as the owner doesn’t advise that notice cannot be delivered in that manner.
In our view, these are positive amendments that will permanently allow all condominium corporations greater flexibility in transacting their affairs. As noted above, we still see some details to be “ironed out” going forward. But overall, we’re pleased to see these amendments incorporated permanently into Ontario condominium law.
Stay tuned to Condo Law News to keep up to date on the latest developments on condominium law.
