Authors: Saravan Veylan, Tessa Rowland, Nathan Cramer
Many British Columbia strata corporations may be concerned about upcoming annual general meetings (“AGM”) or special general meetings (“SGM”) held by the strata council due to the COVID-19 social distancing requirements in place. Of course, an in-person meeting during this time could potentially risk the health of others and violate the government’s public health orders.
Pre-pandemic times required strata corporations to review their bylaws and determine whether meetings must be held in person or if they can be held using a different method. Recognizing that many strata corporations may not be permitted to hold meetings remotely and to ease the administrative burden of amending bylaws, the Minister of Public Safety and Solicitor General Mike Farnworth issued ministerial order no. M114 under the Emergency Program Act, RSBC 1996, c 111 (the “ministerial order”). The ministerial order empowers all strata corporations to hold meetings by telephone or any other electronic method despite any bylaw in force to the contrary, for the duration of the provincial state of emergency.
Strata councils can facilitate successful virtual meetings by taking into account some key considerations when planning an upcoming meeting. Strata councils must comply with the notice requirements set out in section 45 of the Strata Property Act, SBC 1998, c 43 (the “Act”), such as giving two weeks’ written notice for AGMs and SGMs and describing the matters that will be voted on. The notice should also include the details of the video conferencing or tele-conferencing platform being used, including the call-in or joining procedures for attendees. When choosing a conferencing platform, strata councils should mitigate any barriers to attending the meeting by first ensuring that attendees are able to access the platform through a mobile device or computer.
During the registration process at the beginning of the meeting, the strata council should establish quorum by ensuring all participants and proxies are accounted for. Additionally, when using electronic platforms where not everyone can be seen, such as a teleconference, the chair may wish to restrict early departures to ensure attendance remains at or above quorum. The chair of the meeting may wish to have a role call at the beginning, whereby participants and proxies can identify their unit numbers. Furthermore, the council must ward against proxy fraud by ensuring that any proxy forms being relied upon are signed by the person granting the proxy per section 56 of the Act and pre-certified by a member of council in advance of the meeting.
Finally, strata councils will likely need to adopt a revised voting procedure and keep in mind whether all participants can be seen and/or heard throughout the virtual meeting. While many votes may be submitted by roll call, planning for secret ballots (e.g. regarding the election of council members) will need to take place prior to the meeting as these votes cannot be identified by an attendee’s name or strata lot and any eligible voter may request that a vote proceed via secret ballot pursuant to section 27(7) of the Act. In these cases, strata councils should consider platforms that allow for anonymous voting either (a) within the meeting platform, or (b) in addition to it. For example, a strata council may host a meeting on video conference and request the votes by leaving a 30-minute window for participants to vote on an anonymous secure survey platform. Alternately, all votes can be sent to an elected scrutineer appointed in the course of the meeting to tally the ballots.
Strata council members and eligible voters attending meetings alike will likely have many questions surrounding new procedures in place due to COVID-19. Strata councils may find it useful to first hold an info session on the same platform they intend to use for meetings. Allowing people the opportunity to ask questions and test the platform in advance will help prevent technological speed bumps during the first virtual meeting.
Waiver of Meetings
If there are matters that require simple approval by vote at the meeting and you do not anticipate any opposition, there are alternate procedures by which the strata corporation can effect the same business. An AGM may be waived under section 41 of the Act so long as eligible voters do so in writing, consent to resolutions that approve the budget for the upcoming fiscal year, elect a council by acclamation, and deal with any other outstanding matters. A similar procedure can be performed to waive SGMs under section 44.
If the meeting must proceed, it is possible that it can be held in compliance with social distancing guidelines. Notices for any in-person meeting should encourage anyone particularly vulnerable to infection, presently ill, or who has recently travelled outside of Canada to issue a proxy to a neighbour. All voters may vote by proxy pursuant to section 56 of the Act, and to minimize the attendance of the meeting, they may appoint a single proxy to represent them all under the guidance of section 48(2)(a) assuming there is no issue regarding varying positions on voting. This can facilitate one to two person meetings and if multiple people need to attend, they may do so in compliance with the distancing requirements (i.e. meeting outdoors, keeping a safe distance). In order to appoint a proxy, voters must appoint them in writing though the appointment document and proxies may be submitted electronically to minimize contact. All proxies must be retained and all votes must be recorded.
Lastly, if no other option is viable, the strata corporation may want to look into deferring the meeting so long as the meeting is held no later than two months after the strata corporation’s fiscal year end, per section 40(2).
Other considerations regarding electronic or alternative meetings are whether eligible voters’ rights have been protected, whether eligible voters and proxies are properly identified, and whether the procedures are compliant with the Act and the strata’s bylaws. It is also important that the strata corporation remains transparent to the owners about how it intends to proceed with meetings in the face of current health guidelines.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.