I was recently pleased to learn about the tabling of Bill 53 – Service Alberta Statutes (Virtual Meeting) Amendment Act. The Bill is scheduled for a continuation of Second Reading and debate during today’s legislative session. If passed, the Condominium Property Act, RSA 2000 c C-22 (the “Act”) would be amended so as to expressly permit condominiums to convene general meetings by electronic means. You can read the text of the Bill here: Bill 53 – Service Alberta Statutes (Virtual Meeting) Amendment Act, 2021.
It is the view of many condominium lawyers in Alberta (including myself) that the Act and Regulations do not currently permit condominiums to hold general meetings of the owners electronically. After Ministerial Order No. SA: 009/2020 expired on August 14, 2020, section 30(2) of the Act was once again in effect requiring condominiums to convene their Annual General Meetings no later than fifteen (15) months after the most recent such meeting. Unfortunately, this was made impossible in many cases due to the continuation of public health prohibitions on gatherings.
Currently worded, section 31 of the Act does not permit a condominium to change the location of its general meeting without an ordinary resolution of the owners being passed at a general meeting. Theoretically, this section may have been used by condominiums to vote on convening a future general meeting by electronic means. But to enable a change of location, such a vote of the owners was required to occur at a prior general meeting, which was of course not feasible.
Unfortunately, I am concerned that the draft wording in the Bill may unintentionally pose additional challenges for condominium corporations in convening their general meetings. First, the problematic phrase “at a general meeting” has not been removed from the new subsection 31(2). Simple removal of this phrase would have enabled condominiums to pass an ordinary resolution in writing, rather than at a physical meeting, in order to change the location for a future meeting. Perhaps this will come out in changes to the Regulations, but there are also no processes in this Bill that would assist condominiums with verifying the identity of attendees at virtual meetings.
More concerning, however, is that subsections 31(1)(a) and (c) imply that persons entitled to attend a general meeting have an automatic right to attend and vote by electronic means, regardless of how the corporation chooses to convene the meeting. If that is the case, this will place an inordinate and costly administrative burden on condominiums going forward.
All general meetings that are not entirely electronic would likely have to be hybridized, as corporations may have to plan for and set up processes for virtual attendance and voting even though a meeting is intended to be convened at a physical location. Conversely, accommodations will have to be made to allow in-person attendance by individuals who lack the capability (i.e. access to and ability to use technology) to attend a virtual meeting.
This will almost certainly add to the time and cost of convening general meetings, and increase the complexity of establishing quorum, certifying proxies, and tabulating the results of votes conducted during the meeting. The corporation could be required to pay for the additional services necessary to provide electronic attendance and voting options, even if no person ultimately elects to make use of it. Alternatively, the corporation might have to conduct advance meeting polls or send out RSVPs to establish the number of attendees who plan to attend and vote electronically, whether in person or by proxy.
In my view, the ability of a person to attend or vote at a general meeting of the corporation by electronic means must be made conditional upon the corporation convening a general meeting virtually as opposed to in person. Condominiums should not be required to do both at the same time, but should be given the choice of one or the other. That being said, all persons with a right to attend a meeting must be given a reasonable and realistic opportunity to do so.
Further, simply removing the phrase “at a general meeting of the corporation” from subsection 31(2) would, I believe, sufficiently enable condominium corporations to convene a general meeting by electronic means, without the need for subsection 31(1) in its entirety. In any event, that phrase ought still to be removed from the Act, if only to cut the red tape that has made it impossible (in the midst of ongoing public gathering restrictions) for condominium corporations to change the location for their meetings from a physical location to a virtual space.
Finally, it should be noted that only those condominiums with bylaws that are not in “express conflict” with this provision will be able to make use of virtual meetings. But what is an “express conflict”? Is this any different than a regular conflict, already referred to in section 34.1 of the Condominium Property Act? In my view, a conflict is a conflict is a conflict, whether express or implied, and where the Act states that a condominium corporation can do something, bylaws that expressly or impliedly provide otherwise should be of no force or effect.
Stay tuned, and we’ll provide updates if and when Bill 53 is passed and if so, whether it meets the pressing need of condominium corporations to have virtual meeting options without unintentionally burdening them with added administrative costs and complexities.
If you have any questions about this Bill or other condominium-related issues, please comment below or contact one of the members of the Field Law Condominium Group.