We previously blogged about Bill 91 and its impact on condominium corporations as of October 1, 2023.
We have been getting a lot of questions from condo directors seeking clarification as to what is required prior to October 1 to prepare for the change.
As a reminder, Bill 91, will amend sections of the Condominium Act to allow for condo corporations to hold virtual meetings and permit electronic and telephone voting without the need for a by-law. There will also no longer be a requirement to obtain an owner’s agreement/consent to receive email notices, so notices will be able to be sent by email, as long as the corporation has an owner’s email.
Here are some of the questions we have been receiving- together with our responses.
Question: If management has an owner’s email, do we need to get that owner’s agreement to send notices by email?
Answer: As long as you have an owner’s email, unless the owner has specifically directed the corporation not to send notices by email, as of October 1, 2023, notices can be sent to that email address without the requirement to send it by mail.
Question: Under the amendments and Regulations, will a corporation be able to organize an e-vote of Owners without a by-law allowing it?
Answer: Yes, you no longer need a by-law to hold a virtual meeting or electronic voting or telephone voting. However, if you already have an e-voting/virtual meeting by-law, make sure that when you have your meeting, you comply with the provisions in your by-law. Some bylaws may provide the procedures for registration and use of proxies for virtual meetings. There may also be provisions in bylaws which set out procedures for voting in order to avoid anyone accessing ballots/voting results prior to the close of the vote, to ensure that the secrecy of the vote is not compromised.
Those corporations without a by-law may still want to put one in place at a later date so that there are procedures in place rather than a “free for all”.
Question: If a corporation wants an e-vote by owners, can they organize this themselves or must they hire a third-party company so that the “safeguards” about knowing vote totals etc. are met?
Answer: There are no regulations at the moment dealing with the manner in which e-voting is conducted, so e-voting can be a self-service model or handled by a third party company. This is where the by-law provisions become important and careful thought should go into whether you want the board, owners, or management to be involved with the vote through a self-service model. Corporations will also need to ensure that protocols are in place so that the vote is reliable and only those entitled to vote can do so.
Question: Though a corporation can clearly hold an e-vote if they are having a virtual-only meeting, can e-votes be held for ALL kinds of Owner meeting, virtual (only), hybrid and in-person (only)?
Answer: E-voting can be used for any meeting, even in-person. Prior to the pandemic, some of our clients were using e-voting for the voting on by-laws and were successful in doing so. E-voting and telephone voting can be used for virtual, hybrid or in-person only meetings. Voting can also start in advance of the meeting all the way through the meeting with the flexibility of owners changing their vote if they choose to when nominations are made from the floor.
You should check with the provider you want to use to see what type of set up they have for hybrid or in-person meetings. The registration process can also be handled by a third party even with a hybrid or in-person meeting. This can really assist management when it comes to proxies!
Question: If a unit votes in advance (electronically or by paper proxy) can the owner change their vote after advance voting is closed?
Answer: Depending on your provider being able to accommodate it, advanced votes can be changed any time up to the close of the vote – which is usually during the meeting once nominations are closed. This is something that you will have to decide when setting up your vote with the provider.
How paper proxies are handled will vary from provider to provider. There are different ways to handle paper proxies, including inputting the proxies into the electronic voting system and allowing owners to replace their proxies with their own vote should they choose to.