This past Saturday, Ontario expanded to the rest of the province the indoor 10-people “social gathering” limit. We blogged already on the impact these new limits have on Condo AGMs. Many condos who had planned smaller, more intimate in-person AGMs are being caught off guard and are now scrambling to go online or to reschedule their AGM.
Some of our readers are asking whether these restrictions on “social gatherings” apply to condo AGMs, which (some say) are a business meeting, not a social gathering…
So, do these restrictions on “people gathering” (let’s stop calling it a social gathering) apply to Condo AGMs?
Now. We said it. Read on if you want to know how we get to this conclusion.
The confusion may stem from the language used in the press releases. It emphasised restrictions on “unmonitored and private social gatherings”. The reality is that the press releases referred to both:
- unmonitored social gathering and
- organized public events.
The press release went on to state that the new limits do not apply to “events or gatherings held in staffed businesses and facilities, such as bars, restaurants, cinemas, convention centres or banquet halls, gyms, and recreational sporting or performing art events”. This got many speculating on whether they could host bigger AGMs by simply going to one of these venues.
But press releases are for nighttime news. The answer you’re looking for is found in the actual regulation adopted pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act.
Regulation for Stage 3 areas
The applicable regulation (O. Reg. 364/20) provides the rules and restrictions applicable to Stage 3 areas (at this point, the entire province).
This regulation is not limited to “social gatherings”: it imposes capacity limits to “businesses, places, events or gatherings“. It also equally applies to “social gatherings” and “organized public events”. Clearly, AGMs are captured by these gathering limits.
Regardless of the semantics used to describe your condo AGM, the limits on “people gatherings” apply.
Presently, gatherings are limited to:
- 10 people if the gathering is indoors;
- 25 people if the gathering is outdoors.
The indoor capacity applies to events that are partially indoor and partially outdoors. Also, keep in mind that you cannot combine indoor and outdoor events to increase the applicable limit. So, no AGM with 10 people in the garage and 25 people on the ramp driving into it. [You roll your eyes but it seems that the latest national sport is to look for loopholes around COVID restrictions. Wear your COVID medal all you want, I’ll wear my mask.]
Speaking of loopholes, presently, these limit restrictions appear not to apply to organized public events if the venue where the event is hosted is operated by a business or organization regulated by Schedules 1 or 2 of the regulation.
Schedule 2 lists specific rules applicable to restaurants, bars, public libraries, sports facilities, cinemas, drive-ins / drive-throughs (there’s an AGM option!), casinos, bingo halls, campgrounds…. etc. We just listed here those places remotely relevant to where someone would dream of holding an AGM. These places have gathering limits as well.
Schedule 1, deals with (amongst others) businesses or places that rent out meeting or event spaces to the public. These venues have a maximum gathering limit of:
- 50 people indoors;
- 100 people outdoors.
These gathering limits apply provided that individuals in attendance can maintain a minimum 2-metre distance between one another. It is to be noted that this greater capacity does not apply to weddings and funerals. Regardless of how they sometimes feel, AGMs are neither!
In our view, assuming our interpretation is correct, the following limits apply:
- Indoor AGM held at the condo: 10 people;
- Outdoor AGM at the condo (or in a public parc, for that matter): 25 people;
- Indoor AGM at a rented venue not otherwise regulated by Schedule 2 or 3: 50 people;
- Outdoor AGM at a rented venue not otherwise regulated by Schedule 2 or 3: 100 people;
But regardless of these expanded limits at public venues, many owners and professionals such as auditors, managers and lawyers do not feel comfortable attending in-person AGMs. For my part, don’t bother inviting me to an in-person AGM, even if there are less than 10 in attendance. I won’t go.
Corporations should not only aim to comply with the letter of the law. They should aim to comply with its spirit and intent: taking any and all precautions to help contain the spread of the virus in our communities by limiting the amount of people together in one place at the same time.
We’ve said it before: the fact that you “can”, does not mean that you “should”. Let’s stop playing COVID roulette.
Who’s responsible to comply?
Those responsible to comply with these requirements are “the persons responsible for the business, organization or place”: ie the condo corporation. If a condo choses to hold its AGM in breach of the above, it risks a fine of $10,000. Each individual in attendance risks a fine of $750.
What are the alternatives?
Some corporations are tempted to host “intimate” AGMs by asking co-owners to only send one person per unit or by limiting the number of owners in attendance to the strict quorum required (turning back everyone else). We caution against this.
Every owner is entitled to fully participate to the AGM and Corporations should not deprive them of this basic democratic right in an attempt to fit within the gathering limits.
Others are going ahead with planning an in-person AGM, counting on the regulations as they currently exist (ie, counting on the fact you can have up to 50 people in attendance at a banquet hall).
Listen, Folks! Stop planning for the unpredictable. We’ve been at this before. Things change. A week ago, the gathering restrictions were at 50. Friday, they dropped down to 10 but only for Ottawa, Toronto and Peel. Saturday, the province did an about face and expanded the 10-people restriction to the entire province. Sadly, no one knows where we’ll be next week, let alone after the 35-day preliminary notice period.
At this stage, planning an in-person AGMs is simply not a good idea. Hope for the best but plan for the worst.
So what is a board to do? How can we hold AGMs in the face of such ever-changing restrictions?
The solution is quite simple: virtual AGMs and electronic voting.
These solutions are easy, accessible and affordable. And don’t tell me that “old people” can’t do online or that your demographics are not internet savvy. A good platform and a proper set up will ensure easy access to the AGM :
- by phone or,
- if all fails, by proxy.
I know, I know. Virtual AGMs providers are booked solid. Indeed, there is a bottle neck caused by all of the covid-postponed AGMs. But some of them still have Day-GMs, Fridays and weekends.
In a worse case scenario, holding a mildly late AGM is better than to hold an unsafe one or than to hold one in breach of the gathering limits.
Reach out to us if you’re in a bind or are scrambling to schedule (or re-schedule) your AGM. We may be able to host your AGM on our own platform.
We can also help you pass an electronic bylaw allowing virtual meetings and electronic voting without the requirement to hold an in-person meeting.
Now, stop looking for loopholes and be safe.