Scared of Holding Your AGM During a Lockdown?
Yes. Subsection 45(2) of the Condominium Act, 1998, requires all condominiums to hold an annual general meeting (AGM) within six months of the end of the fiscal year. There are no exceptions as the AGM serves several important functions, such as presenting the audited financial statements to owners and electing directors.
The Ontario government briefly extended the time for holding AGMs for condominiums with fiscal years ending September 30, 2019 to January 31, 2020 because of restrictions on large gatherings, but no further extensions have been made. As a result, condominiums with fiscal years ending February 2020 and later must hold their AGMs within six months of the end of their fiscal year.
There continue to be restrictions on large gatherings and case numbers are increasing again. How can we safely hold our AGMs?
The Ontario government made orders (and later temporary amendments to the Condominium Act, 1998) to permit condominiums to use electronic and telephonic means to hold their meetings even if their by-laws do not permit such. This means that condominiums can hold their meetings in a variety of ways, such as:
- with the assistance of a meeting host / provider
- using virtual meeting platforms, like Zoom, Go-To-Meeting, Google Meet, Teams, etc.
- using teleconference
While the last extension is set to expire on May 31, 2021, it seems likely a further extension will be made until the restrictions on large gatherings are lifted. Alternatively, there is some speculation that the Act may be amended to make these changes permanent. In my opinion, even if a further extension is not made, using electronic or telephonic means to host a meeting may still be preferable to holding an in-person meeting for some condominiums.
The amendments also permit voting by electronic or telephonic means even if the by-laws do not permit such. Depending on the size of the condominium and the nature of the votes to be conducted, the condominium may be able to use the voting features built into the platforms (i.e. polls, show of hands). In some cases, it may be preferable to use a meeting host/provider to assist with the voting process, or at least purchase a voting package to assist with the collection of e-proxies or e-votes.
Some people in the industry, including the Condominium Authority of Ontario (CAO), also support the use of proxy only meetings in some situations (i.e. non-contentious issues). A proxy only meeting is one where the owners are not permitted to attend a meeting in person and all voting must be performed by proxy. I personally question whether requiring owners to vote via proxy is in compliance with the Act, but I understand the logic behind it. As such, a proxy only meeting might be useful if the owners are agreeable to holding the meeting this way and there are no contentious issues to discuss or vote on.
Very small condominiums might be able to conduct meetings in person so long as they can comply with the restrictions on gatherings at the time of the meeting. The most common reason for wanting to host a meeting in person is a perception that people will not be able to participate because they are not familiar with the technology. I have found this to be exaggerated. People have adapted very well and the technology is user-friendly. Holding a meeting in person could exclude people in the same way a virtual meeting may exclude those unable to use the technology as some may be unwilling or unable to attend in person due to the risks of infection.
I acknowledge that access to reliable internet or devices might be an issue for some. If this is a concern, I would encourage the condominium to consider a teleconference as many people can figure out a phone call without much trouble. Alternatively, consider a proxy-only meeting for non-contentious meetings.
As people are vaccinated (at least those who are willing and able), it will become possible to hold meetings in person again. It seems possible that certain parts of Ontario will resume more normal activities sooner than others.
If you have any questions about the best option(s) for holding your AGM you should reach out to your lawyer for an opinion.