The clock is ticking towards the implementation of the “New” Condo Act! The implementation of this new regime will be done in phases over the next few months. Some of the early changes will affect how condo corporations give notice of owners meetings. Here is a “step by step” guide on how to call your next AGM.
Under the Current Act
Under the current Act, the Annual General Meeting (“AGM”) must be held within 6 months of the end of the corporation’s fiscal year. All that the corporation is required to do to call this meeting is to provide written notice to owners at least 15 days before the day of the meeting. The notice needs to specify the place, date and time of the meeting as well as the nature of the business to be presented at the meeting. When changes are proposed to the declaration, by-laws or rules, a copy of these changes is to be included in the notice. When an owners meeting is called as a result of a requisition, a copy of the requisition is to be included.
All of this will change significantly under the new regime.
Under the “New” Act
35 days before the AGM
At least 35 days before the AGM, the board must send out a written Preliminary Notice to the owners and mortgagees whose names appear on the corporation’s record 5 days before the notice is sent. The form and content of the Preliminary Notice will be developed and provided by the province. As of the date of this post, the new form is not yet available.
The purpose of the Preliminary Notice is to provide owners with an advanced notice of the date and purpose of the meeting to come. The Preliminary notice must specifically indicate that another formal notice will follow.
- If there is going to be an election of director(s), the Preliminary Notice must advise the owners of the number of directors on the board, of the number of positions open for election and of the duration of the terms to be filled. The Preliminary Notice must request that individuals wishing to present their candidacy for election to the board must notify the board in writing of this intention. This notice must also tell owners how to advise of their interest to run for election and of the deadline by which this is to be done. A copy of subsection 29(1) of the Condo Act and of section 11.6 of the Regulations under the Act must be included with the Preliminary Notice.
- If an auditor is expected to be appointed (or removed) at the meeting (and one must be appointed at every AGM), the Preliminary Notice must advise owners that they can propose an auditor, by providing the name and address of their proposed auditor.
- Finally, the Preliminary Notice must also advise owners wishing to include any material in the formal notice of meeting to provide such materials by a specific date. Note that the board is not always required to include such material in the notice of meeting. The Preliminary Notice must contain a statement to that effect. In a later post, we will discuss this new possibility for owners to ask for the inclusion of additional material in the “AGM package”.
Deadline for owners to respond to the Preliminary Notice
The Preliminary Notice must set out a deadline by which owners can submit to the board :
- their intention to be a candidate for election;
- any additional materials owners wish to add to the Notice of Meeting; and
- their proposed nomination of auditors.
This deadline chosen by the board must be at least 15 days after the board gave the Preliminary Notice but also at least one day before the board gives the formal Notice of Meeting. This is to allow owners sufficient time to provide their input on the points listed above. So, for example, assuming the Preliminary Notice is sent 35 days before the AGM and the Notice of Meeting is sent 15 days before the AGM, the deadline to respond to the Preliminary Notice must be at least 16 to 20 days before the AGM.
15 days before the AGM
At least 15 days before the AGM, the board must give formal notice of the meeting. This notice must be in writing, in the form provided by the province, and must be sent at least 20 days after the Preliminary Notice. The form to be used will be entitled “Notice of Meeting of Owners“.
The Notice of Meeting must be sent to owners and mortgagees whose names appear on the corporation’s record 20 days before the day of the meeting. Interesting to note that, therefore, the Preliminary Notice and the actual Notice of Meeting may not necessarily be sent to the same people as the corporation’s record may have changed between the two notices.
The Notice of Meeting shall specify the date, time and place of the meeting as well as the nature of the business to be presented at the meeting. When changes are proposed to the declaration, by-laws or rules, a copy of these changes is to be included in the notice. When the meeting is called as a result of a requisition, a copy of the requisition is to be included.
The Notice of Meeting shall also confirm the quorum required for the meeting to take place and must include a statement on who may count towards said quorum (keeping in mind, for instance, that certain owners may not count towards quorum if they are in arrears). The Notice of Meeting must also advise of the manners in which owners may be present at the meeting (in person or by proxy) and how they may vote.
- If there is going to be an election of director(s), the Notice of Meeting must confirm the number of persons on the board and how many positions are open for elections; how many are non-leased unit positions (if these apply); and the term of each position. The notice must also provide the owners with the name and address of each individual who has advised in writing of their intention to run for election, together with their disclosure statement. We have already blogged on directors’ new disclosure obligations.
- If the board received recommendations for the appointment of the auditor in accordance with the Preliminary Notice, the names and addresses of these proposed auditors must be included in the Notice of Meeting.
The Notice of Meeting must be accompanied by a copy of subsection 29(1) of the Condo Act and a copy of section 11.6 of the regulations adopted under the Act.
When will all of this start to apply?
The above will only apply to meetings of owners called 40 days or more after the modified section 47 of the act is enacted. As of now, we do not know exactly when these provisions will be “turned on” by the province. We expect this to take place later this fall (and not on July 1st as initially reported by the province). As of the time of this post, the forms required for the Preliminary Notice or the Notice of Meeting of Owners have not yet been released by the province.