In a recent case, YRCC No. 818 v. Przysuski, the Ontario Superior Court of Justice confirmed the validity of the election of the board of directors of a condominium corporation. The dispute over the results of the election hinged on the delivery and validity of one particular proxy.
In the election three candidates were vying for two positions on the board. Following the election, the condominium corporation claimed that the scrutineers at the meeting had made a mistake in counting the votes submitted by the owner of 33 commercial units in the condominium, as the proxy was only counted as one vote instead of 33 votes. After a recount the results were the same. The corporation claimed that the same error was made on the recount. If the proxy from the commercial owner had been counted as 33 votes, then the results of the election would have been different, with the losing candidate now being elected.
Five of the six scrutineers at the meeting denied having seen the proxy at the election or the recount, stating that it was only presented to them by the property manager right after the recount. (No evidence was presented from the sixth scrutineer.)
Furthermore, the scrutineers claimed that even if the proxy had been presented at the meeting, it was invalid as it lacked signed initials beside the names of the selected candidate(s). The proxy form instructions specifically stated that “in order to be included in the tally, your initials must be present beside his/her candidate selection(s).” The corporation’s legal counsel had also instructed the scrutineers to not count any proxies that lacked initials next to the selected candidate’s name. In response to this the corporation argued that the requirement for initials was an unnecessary formality and that the court should exercise its equitable discretion to overlook the omission of the initials on the proxy.
The Judge concluded that the proxy was not present at the meeting or at the recount, accepting the evidence of the scrutineers and criticizing the efforts of the property manager to discredit the scrutineers in an attempt to change the election results. The Judge further determined that even if the proxy had been present at the meeting and the recount, it was not valid in any event. The requirement for initials on the proxies was unambiguous and the corporation could not arbitrarily change this requirement.
As we noted in a previous blog, contentious proxy battles are not uncommon in condominium corporations – mistakes can be made in the process of drafting, distributing, collecting and managing proxies. For this reason, we expect that eventually the use of proxies at condominium owners’ meetings will be superseded and replaced with electronic voting.