Concerns re: Proposed Condo Act Amendments – Concern #5

As mentioned in previous posts, Bill 106: Protecting Condominium Owners Act was introduced in the Ontario Legislature on May 27, and the full text of the bill is now available here. If passed, this bill will make crucial changes to the administration and operation of condominiums, which will affect both condo corporations and owners across Ontario.

Many of the proposed Amendments to the Condominium Act, 1998 (“the Act”) look very good to me. However, I do have some concerns. This is my blog post on Concern #5.

Concern #5 – Mandatory Proxy Form

Currently, the Forms under the Act include three proxy forms: a “Proxy for General Matters”, a “Proxy for General Matters and for the Election of Directors” and a “Proxy for General Matters and for the Removal of Directors and Election of Substitutes”. And Section 52(6) of the Act states that “An instrument appointing a proxy may be in the prescribed form”. So, the prescribed forms are currently optional.

However, the proposed amendments to the Act state that a proxy instrument “shall be in the prescribed form”. So, if this amendment becomes law, the prescribed form(s) of proxy will become mandatory.

On the one hand, I see the reasoning behind this proposed amendment. Namely, to ensure that proxy instruments are clear and understandable, and to thereby avoid problems caused by proxy instruments that are confusing or unclear.

But here’s my concern. Condominium business (including elections) can sometimes be intricate or complex, and I find that the prescribed proxy forms are sometimes not suitable for that reason. In other cases, I find that the prescribed form can be more complex than is necessary. In short, I find that the prescribed forms can sometimes create confusion and difficulty. I often prefer an alternative form of proxy.

Here’s one small example. Elections can become intricate or complex for a number of reasons:

• What if there will be two elections? For example, one election to fill “regular” Board vacancies and one election to fill the “owner-occupier elected directorship” (which may be amended to become the “non-leased-voting-units elected directorship”)
• What if someone is a candidate in one election, but not in the other?
• What if a candidate drops out of an election before the vote is held?
• What if the election is to fill vacancies created by the removal of directors, and not all of the directors (for whom there is a removal vote) are removed?

For these reasons, I often prefer a “ranking proxy” that allows the owner (who signs the proxy) to rank the candidates for election to the Board in order of preference.

I also feel that the legislators should be thinking about proxy instruments that are deliverable by mobile device. The proposed amendments would allow for votes to be recorded (at meetings) “by telephonic or electronic means, if the by-laws so permit”. In my view, proxies should also be deliverable electronically (for instance by email or text), without any requirement that they be in a prescribed format (or even that they be signed by hand, as long as the sender is reliably identifiable). Requiring a prescribed form of proxy may put an unnecessary “crimp” in these modern means of communication.

The point is as follows: I prefer to give condominium corporations (and owners) flexibility when it comes to proxy instruments.