UPDATE – Service Alberta has released a new publication, General Meetings During Relaunch, in an effort to clarify the effect of the Ministerial Order’s expiry. Among other things, this publication confirms that condominium corporations are not expressly authorized to allow electronic participation in general meetings of the corporation, especially if the bylaws are silent in this regard. Condominiums that are considering an electronic general meeting are encouraged to consult their bylaws and legal counsel to determine how best to proceed.
The new publication also states that the suspension was only applicable to condominiums whose paused AGM, or 15-month deadline, would have occurred during the period the Ministerial Order was in force (April 9 – August 14). For condominiums whose AGMs were not paused by the Ministerial Order (because their deadline did not fall within that timeframe), there was effectively no suspension of time.
For more information, please read our original blog entry, below.
On August 14, 2020, Ministerial Order 009/2020 expired, and there are no indications that it will be renewed or replaced. You can read the Service Alberta announcement here: Ministerial Order SA 009/2020 Expiry Notice Information Update from Service Alberta
Among other things, the Ministerial Order, which came into force April 9, 2020, temporarily suspended requirements for condominium corporations to convene an Annual General Meeting (AGM) within 15 months from the date of the last AGM. The ability of a unit owner to compel a Special General Meeting (SGM), and the corresponding obligation of the condominium corporation to convene an SGM in response to an owner’s petition, were likewise suspended. We discussed these temporary suspensions in a previous blog post: Suspended: Condo Timeframes and Rights of Entry
Calculate the AGM Deadline
If you are unsure of the deadline by which your condominium corporation needs to convene its next AGM, first check the date of the last AGM. For example, if it took place on February 9, 2019, then prior to the Ministerial Order, the deadline would have been May 9, 2020. However, the Order effectively paused time from running as of April 9
when it came into force (30 days before the AGM deadline), through to August 14 when the Order expired. Therefore, the corporation now has 30 days from August 14, or until September 13, 2020, to convene the next AGM.
Public Health Restrictions on Physical Gatherings
Unfortunately, the expiry of the Ministerial Order presents a problem for mid-sized and larger condominium corporations. The requirement to convene an AGM within 15 months from the last such meeting could place condo corporations in direct conflict with current public health restrictions on large gatherings, which are still restricted to 50 people indoors and 100 people outdoors (or potentially 100 people indoors, for seated events, which could apply to condominium owners’ meetings). Moreover, social distancing rules are still in force, so any physical meeting space must be large enough to accommodate all owners who are eligible to attend while also allowing for a two-metre space between owners of different households.
Condo corporations are not exempt from adhering to public health restrictions, but must now find a way to convene an AGM within the legislated time frame, and without offending those same restrictions. Boards and property managers can encourage unit owners to limit attendance to a single owner per unit, strongly recommend the use of proxies, and discourage attendance by anyone feeling sick. However, condominiums cannot restrict unit owners from attending if they so wish. All owners are members of the condominium corporation, and have a corresponding, fundamental right to participate in its affairs through attendance and voting at these annual meetings.
Electronic Alternatives to Physical Meetings?
Some condominiums may consider convening an electronic AGM in lieu of a physical meeting. In that case, the bylaws of the corporation should first be consulted to determine whether an electronic meeting of the owners is even permitted, as the legislation does not expressly contemplate this (electronic meetings are permitted for boards, as long as all members are able to hear one another). In fact, it is arguable that since this power does not exist in the Condominium Property Act, that condominiums lack the ability to convene virtual owners’ meetings entirely.
Nonetheless, if the corporation wishes to proceed with a virtual owners’ meeting, and the bylaws include provisions for such electronic meetings of the owners to occur, then the general requirements for owners’ meetings must still be followed. These include, at a minimum, ensuring access for all owners (or their representatives) who wish to attend, verifying proxies, establishing quorum, and complying with procedural requirements for all votes that must take place at the meeting.
Practically speaking, this means that in a vote to approve the agenda, for example, the host or chair of the meeting must poll each attendee for a response. In Zoom meetings, the host can employ an actual “poll” that allows attendees to submit a vote on such votes with the click of a button.
But for more substantive or even contentious issues, a poll vote in accordance with the bylaws may be demanded. In this case, each attendee would be required to, one after another, vocalize a response to the motion, while the host/chair records the names, unit numbers and responses. For large corporations, this could result in meetings that take several hours, and the result of any contentious votes would be, in my view, susceptible to challenge by a disgruntled unit owner.
Potential Liability for Condos
Smaller condos that are considering having an in-person AGM should also consider including some form of COVID-19 waiver in the AGM notice. There is always a possibility that someone could attend the meeting and unknowingly spread COVID-19 to other unit owners, triggering an outbreak within the condominium corporation and potentially beyond. The corporation should take all reasonable steps to minimize this risk, but if a physical meeting cannot be avoided, then it must take steps to minimize its liability, as well.
With the expiry of the Ministerial Order and no replacement or extension in sight, some condominiums may have no choice but to convene a physical AGM, or else attempt a virtual one, in order to avoid being caught by the 15-month time limit. Condos in Alberta will simply have to do their best, and take all possible precautions to help ensure that a safe, smooth and efficient meeting proceeds.
For questions and advice about when and how to convene an AGM, please contact Erin Berney.
Originally published August 19, 2020