The Proxy is (sometimes) the Ballot

As our readers know, condominium owners can attend meetings by proxy. And the prescribed proxy form allows the proxy giver to include specific voting instructions on the form.

A proxy giver in fact has a few options (when completing the proxy form):

• The proxy form can say that the appointed proxy only has the right to attend the meeting (for quorum purposes), but no right to vote.

• The proxy form can say that the appointed proxy can only vote on matters of routine procedure.

• The proxy form can say that the appointed proxy can vote on all matters, subject to any specific instructions included on the proxy form.

Here’s the point:  If the proxy form includes any specific instructions, the “proxy is the ballot” in relation to those particular matters.  So, when the person appointed as proxy is registering for the meeting, he or she should not receive a ballot for those items (otherwise there is the outside risk that he or she might complete the ballot in a manner that is not consistent with the proxy giver’s specific instruction).

But for all other business – where the appointed proxy retains voting discretion – the person appointed as proxy should of course be given ballot(s) and/or voting card(s) for that other business.

This can become a little tricky when considering amendments.  A basic principle of corporate meeting procedure is that voters have the right to make a motion to amend most proposals (that are presented to a meeting).  Take, for example, By-laws and Rules of a condominium corporation.  It’s clear, from a review of Sections 56 (10), 58 (5) and 58 (8) of the Condominium Act, that voters can move (at a meeting) to amend a By-law or Rule presented for consideration of the meeting.   Amendments can be a vital, effective way for a community of voters to come to a decision on a particular proposal.

Note as well that proposed amendments don’t have to be mentioned in the Notice of Meeting – because the inherent right to make amendments is part of basic corporate procedure (and of course a specific proposed amendment won’t necessarily be known in advance of the meeting).  As long as a proposed amendment is only an amendment – ie. it won’t create an “entirely new proposal” – the proposed amendment is “part of the same business”.   If this wasn’t the case, an entirely new meeting might be required for each and every desired amendment, which of course would not make practical sense for the community.

But the tricky question is:  If a proposed By-law or Rule is amended at the meeting, how does a specific voting instruction in a proxy form (in favour of, or opposed to, the proposed By-law or Rule) apply to the By-law or Rule as amended?  It may not be perfectly clear.

One way to address this is for the voting instruction in the proxy form to say “in favour” or “opposed” with any amendments approved at the meeting.  That’s an approach that we suggest in many cases.

Stay tuned to Condo Law News and keep up date on the latest developments and amendments to the Condominium Act and other related statutes.