Much has been written about the newly enacted electronic voting in condos. While it is received by many as a long-overdue solution to the proxy and quorum challenges faced by many corporations, some commentators have hesitated to adopt it, preferring to cling onto the requirement of a proxy to count someone’s presence toward quorum. In this post, I weigh into this debate and answer the ultimate question: what was the point of the province’s forward- thinking changes in accepting electronic voting if it continued to require physical presence or the traditional proxy form.
In November 2017, the Ontario government, passed legislation to update and modernize the Condominium Act (the “Act”). After extensive consultation with owners and industry participants, including examining practices in other countries, the Ministry of Government and Consumer Services introduced numerous amendments to the Act both to address past issues and to pave the way for the future.
One of the most forward-thinking changes was the introduction of electronic voting. Section 52(1)(b) of the Act now provides that votes at a meeting may be cast by “…electronic means, if the by-law so permits”.
The Ministry, recognizing the ever-changing nature of technology and the need to make the Act a piece of legislation capable of evolving with the times, wisely didn’t attempt to place any restrictions around what it means to vote by “electronic means”, giving the term a broad and flexible definition capable of embracing all forms of technology, both present and future. Section 52(1.1) defines “electronic means” to mean “any means that uses the telephone or any other electronic or other technological means to transmit information or data, including telephone calls, fax, email, automated touch-tone telephone system, computer or computer networks”.
As long as condominiums pass the required by-law, they are free to enact an electronic voting solution tailored to their needs and preferences.
Notably absent from any of the provisions regarding electronic voting are any limitations on when a vote must be cast by electronic means. Again, the Ministry wisely chose not to undo the benefits of the very change they were introducing by requiring a vote cast by electronic means to be cast in real time while a meeting was underway.
For some commentators who remain hidebound to traditional notions of voting as paper ballots dropped into a ballot box, this has caused some consternation. But one need look no further than the definition of “electronic means” itself and other amendments to the Act to divine the Ministry’s forward looking intentions.
First, consider the inclusion of “fax” in the definition of “electronic means”. Even the most old-school commentator would have to reasonably concede that the Ministry wasn’t contemplating that owners would bring their fax machines to the meeting in order to cast their vote by electronic means. Such an interpretation is absurd. Rather, the inclusion of “fax” in the definition of electronic means is consistent with the Ministry’s progressive view and contemplates that condominiums should have the latitude to pass an electronic voting by-law which permits owners to cast their vote by sending it in by fax in advance of the meeting.
Second, consider other amendments to the voting framework that the Ministry made at the same time as they introduced voting by electronic means. When the Ministry amended the Act to permit voting by electronic means, it also added section 56(1)(c.1) to the Act to permit a corporation to pass a by-law to permit a vote cast by a ballot or marked on a proxy to be “submitted to the corporation by mail”. Here, there can be no room for debate – zero. Even the most narrow-minded commentator has to concede that a ballot submitted by mail is a vote being cast in advance of the meeting. And there is no principled basis to distinguish a vote submitted by mail in advance of the meeting from a vote cast by electronic means in advance of the meeting. Again, as long as the condominium passes the required by-law, it is free to tailor the solution to fit its circumstances.
The ability of owners to submit ballots by mail in advance of the meeting is important since it speaks to the greatest source of misunderstanding and confusion on the part of those reluctant to embrace electronic voting. They say, surely an electronic vote cannot be submitted in advance of the meeting because that would affect quorum? The answer – in the same way a vote submitted by mail does – but clearly, the Act now expressly permits voting in advance of the meeting.
The addition of section 56(1)(c.1) to the Act at the same time as the electronic voting measures were introduced makes eminent good sense. The Ministry recognized the importance of permitting absentee owners, or owners who just prefer not to attend meetings in person for whatever reason, to enjoy the same rights and benefits of participation in the electoral process, whether that participation is through “electronic means” or by way of traditional voting methods.
Like most disruptive technologies, electronic voting is slowly gaining acceptance as the condominium industry climbs the curve of understanding and experiences electronic voting’s benefits firsthand. Electronic voting facilitates quick, easy and direct participation by unit owners in the voting process and inevitably will dispense with the need for proxies – in any form, whether electronic or paper. When an owner can participate in a vote on their own terms through electronic voting, there is no need for them to give their proxy to anyone else.
Make no mistake – that’s a good thing. While proxies may have served a legitimate need before electronic voting, they were also unfortunately the means by which some unscrupulous types were able to use the voting process for their own personal gain or benefit by allowing the power of the many to be concentrated in the hands of a few. Electronic voting finally provides an easy, simple and contemporary means for all unit holders to participate in the voting process.
To find out about the process of Electronic Voting, CondoVoter is holding its free monthly webinar on Wednesday January 30th at 10:00 a.m. Click here for more information. Click here to download our guide on Electronic Voting for condominium corporations.