By now many of us have received notification about the proposed Bill 91 “Less Red Tape, Stronger Economy Act, 2023” which introduces 12 amendments to the Condominium Act (the “Act”) and 22 amendments to Regulation 48/01. The Ministry has asked for feedback on the regulations.
For those of you who have tried to figure out what these changes are and then gave up – you are not alone. Basically, the most important changes allow for the following:
- Permit corporations to conduct virtual/hybrid meetings and conduct voting either virtually or in hybrid form- no By-law is required;
- Remove the requirement for owners and mortgagees to agree to accept e-mail communications – no Agreement to Receive Electronic Notices required. The assumption will be that if an owner or mortgagee has advised their corporation of their email address the corporation can then use it to communicate with them. If the owner or mortgagee wants paper they must ask for it.
With the assistance of my number one go to for these types of complicated tasks, David Crawford, (who by the way is an extremely knowledgeable condo director and volunteer with the CAI Canada Advocacy Committee), I have put together a summary highlighting some of the proposed changes with my commentary.
Proposed changes to the Act.
- The definition of ‘telephonic and electronic’ now applies to the whole Act. It might be time to remove ‘fax’ from the possible means of communication!
- Changes to content requirements for notices of a meeting of directors with respect to telephonic and electronic attendance and voting. Must include instructions.
- Providing for meetings of directors or of owners to be held entirely by one or more telephonic or electronic means or by any combination of in-person attendance and by one or more telephonic or electronic means. Boards will no longer require the consent of all directors before being able to proceed virtually.
- A person attending a board meeting or an owners’ meeting by electronic means will be considered present.
- A person who casts an e-vote or vote by phone before or during an owners meeting is considered present at the meeting. This is an important change since this confirms that voting in advance of a meeting is considered to be “present” and therefore counts towards quorum. So why do we need proxies?
- The corporation is required to maintain a record of owners and mortgagees which is also to include any prescribed information – email addresses for owners fall under this.
- Though owners and mortgagees can opt-out of email, email addresses are now the preferred Address for Service and can be used without an owner or mortgagee giving permission and are sufficient for all notices and communication. This is something that managers have been waiting for!
- A notice of a meeting of owners does not need to specify a place of the meeting if it is to be held entirely by one or more telephonic or electronic means.
- At meetings of owners, a vote by a show of hands or by a recorded vote may be conducted entirely by one or more telephonic or electronic means or by any combination of in-person attendance and by one or more telephonic or electronic means.
- Record-keeping requirements include ballots and instruments appointing a proxy received in advance and at the meeting of owners and e-voting reports.
Proposed changes to Regulation 48/01
- Section 11.11 of the Regulation deals with meetings called by owners where directors fail to call the meeting or there are no directors in place. The changes proposed to this Section clarify that owners can attend these meetings by telephone or electronically and there must be instructions on attending, participating, and voting. Also, if a meeting is held entirely by telephone and/or electronically, the notice of form does not need to specify a place of the meeting.
- Clause 12.1 (2) (a) of the Regulation is amended by striking out “in paper form” and substituting “in writing”. This is a good one for managers who now no longer have to bring a hard copy of the PIC or the ICU to the owners meeting.
- Section 12.6 of the Regulation. The Regulation is amended by adding “Record of owners and mortgagees 12.6.1 (1)”. This is a very welcome change and makes email communication the norm. If an owner or mortgagee provides an email address to the corporation FOR ANY PURPOSE (emphasis added), the Corporation can use it to communicate with them. In short, the change means that if an owner or mortgagee ever provides a corporation with their email address, the corporation can use it as their Address for Service. If the owner or mortgagee does NOT want email THEY need to inform the corporation.
- Transition. If a corporation decides to use email to communicate to owners and mortgagees, they can use any email addresses they have received in the past. (Of course, it might be wise to send out a ‘test email’ just to make sure that the email address is still active for important communication and notices.)
- Sub-sections 12.7 (1), (2) and (3) are revoked. These are the Sections dealing with the need for a Corporation to receive the Agreement from owners to send email notices.
- Section 12.8 of the Regulation. This clarifies the requirement to include instructions on how to attend, participate and vote at an owners meeting.
- Section 12.10 of the Regulation. Clause 52(2), which allowed proxies to request a recorded vote either before or after the vote is rescinded. VERY UNCLEAR!! Feel free to send me your interpretation.
- Subsection 13.3 (5) of the Regulation. The Board can decide whether to send communications to Owners and Mortgagees electronically. No resolution needed.
- Paragraph 1 of subsection 13.11 (2). This removes the requirement for an owner to agree to receive electronic notices. The presumption is that if the corporation has an email address of an owner or mortgagee, they can use this to send them email.
- Subsection 13.11 (3) of the Regulation is revoked. Since there are no more Agreements required for electronic communication then there is no longer the requirement to deem these private and confidential under section 55.
- Clause 14 (0.1) (p) of the Regulation is revoked and the following substituted: (p) to govern the manner in which an owner or a mortgagee may be present at a meeting of owners or represented by proxy at the meeting; Could this possibly mean that provisions can be included in a by-law that restrict the use of proxies?
- Clause 14 (0.1) (q) of the Regulation is amended by striking out “may, by resolution, decide” and substituting “may decide”. Boards no longer need to do a resolution that authorizes electronic communication.
- Item 9 of the Table to section 16.1 of the Regulation is revoked. This Table is of the Forms that are the responsibility of the CAO. As the assumption is now that e-communication is the norm, there is no need for this Form (Agreement to Receive Notices Electronically). Now we just need to get CAO to finally edit and update the other Forms!
In my opinion, these proposed changes to the Act and the regulations were much needed. Although we have many more sections of the Act to tackle, at least getting legislation in place that addresses some of the governance issues that condominium communities have had to deal with, is a step in the right direction.