The Condominium Authority Tribunal was recently asked to rule on whether condo owners should be allowed to inspect unredacted copies of the proxy form used at an AGM. This was yet another case where the Tribunal attempted to balance privacy and transparency.
Before we summarize the case, tell us what you think. Should owners be allowed to inspect proxies? Take our quick survey below and read on. (Click here if you can’t see the survey below).
Facts of the case
In this case, an owner was seeking to get “legible and unaltered” copies of the proxies submitted at the AGM in order to “audit” the election. The owner was concerned with the fact that the number of proxies used at this AGM had more than doubled from previous years. She was also concerned with the fact that the superintendent had been soliciting proxies. Finally, she had at least one example where someone denied having given a proxy used at the AGM.
The Corporation was prepared to provide copies of the proxies but only after having redacted the personal information of owners contained in them (such as name and address of the owner). The owner was of the view that redacting name/unit numbers of those granting the proxy would prevent her from doing a “fully transparent” audit of the election.
Very compelling submissions were made to support full disclosure of unredacted proxies, including the fact that this would be the only practical way of “auditing” an election and that owners who gave a proxy could not expect the form to be confidential.
The Tribunal ruled that section 55(4) of the Act, read in conjunction with section 13.11(2) of the applicable regulation is clear: while owners are entitled to examine or obtain copies of a proxy form, they are not entitled to see any information identifying specific units or owners unless a by-law of the corporation provides otherwise. In this case, the corporation had not adopted such a bylaw. The corporation was therefore entitled to blank out owner’s information.
Balancing privacy and transparency
While the legislation is clear (ie: owners cannot access private information on the proxy unless the corporation has adopted a by-law allowing it), it leaves us to wonder whether the proper balance has been struck between privacy and transparency.
On the one hand, how would owners ever be able to ‘audit’ the result of an election if they are not allowed to inspect the proxy and cross reference it against a list of owners. To me, it appears insufficient to allow someone to inspect a bunch of proxies without ever being able to determine who gave the proxy and whether the same unit has given more than one proxy. On the other hand, I can see the importance of preserving the anonymity of a vote. No one knows how owner X voted at the AGM, why should there be less privacy if an owner votes through a proxy? In fairness to the requisitionist in this case, she did not seem particularly interested in contested the result. All she appeared to have wanted was to be able to confirm the validity of the proxies.
It is interesting to note that section 55 (5) of the Act specifically authorizes owners to obtain the list of owners, with their address and all. Yet, owners appears not to be entitled to see that same information on proxies. These two levels of privacy appear somewhat inconsistent.
Perhaps, ultimately, the duty to inspect proxies should be left to the scrutineers. That may be the ultimate mechanism balancing privacy and transparency.
Adopting a by-law may be the solution
Part of the solution may be to adopt a by-law which allows for a proper inspection of the proxies. To help our corporations, we have developped a by-law which, in our view, strikes the perfect balance between transparency and privacy. We’re happy to chat about it.
We are working on a piece on privacy in condos. If you have not done so already, why don’t you tell us what you think by taking our short survey on whether owners should be able to access proxies. You can also take our past survey on whether owners should have access to the list of owners and their address.