Though Ontario’s first Condominium Act was adopted in 1970, owner elections were not mentioned until amending Acts in 1974 and 1978 clarified that unit owners are the electors and that each unit is entitled to one vote. Corporations were required to give at least 10 days’ advance notice of an owners’ meeting.
In 1998, the ‘new’ Condominium Act increased the advance notice requirement to at least 15 days; however meetings were still often held before owners had sufficient time to organize and submit nominations.
To address this imbalance, amendments introduced in 2017 require the sending of a Preliminary Notice. This must specify the deadline by which director candidates must notify the corporation of their intention to stand for election and submit the prescribed disclosure. The Preliminary Notice must be delivered at least 20 days before the Notice of Meeting is distributed.
Candidates who comply with the nomination requirements are listed in the final Notice of Meeting, appear on advance ballots, and may also be voted for in person or by proxy holders.
Prior to the introduction of the formal Preliminary Notice, it was reasonable to permit additional nominations at the meeting (“nominations from the floor”), as this ensured that owners caught off guard by a hastily organized meeting still had an opportunity to be nominated. Now that owners must be given substantial advance notice, this practice, which is very rarely seen in other election procedures, is increasingly difficult to justify.
Permitting additional nominations from the floor at owner meetings is not required by the Act and creates practical difficulties. Owners who have voted in advance (as is now very common) or who have appointed a proxy with specific voting instructions are unable to vote for these candidates.
Three possible scenarios should guide election procedures:
- There are more valid advance nominations than vacancies
Hold an election using only the advance nominees. - The number of valid advance nominations equals the number of vacancies
Declare all advance nominees elected by acclamation. Since the Act requires candidates to be “elected,” a procedural motion by the chair may be needed to confirm their election. - There are fewer valid advance nominations than vacancies
Declare all advance nominees elected by acclamation (possibly with a confirmatory vote). Hold an election only to fill the remaining vacancies, permitting nominations from the floor solely for that purpose.
Best Practice Recommendation
Unless a corporation’s by-laws impose additional requirements, boards should consider adopting the above framework and solicit nominations from the floor only when insufficient advance nominations exist to fill all vacancies on the board.
Our thanks to David Crawford for this second guest post and for continuing to shed light on the practical and legal issues surrounding condo board nominations.
At Lash Condo Law we are recommending that condominium corporations consider implementing by-laws that set out the procedures for handling Nominations and Proxy Use. Stay tuned for our next post on the implementation of these bylaws
