Can AGM packages be sent to condo owners by email?

Since last October, condo corporations are permitted to send notices to owners by email.  Our readers have asked us whether this applies to AGM packages as well.  Search no more, here’s the answer.

Recent changes to the Act

The “Less Red Tape, Stronger Economy Act” (Bill 91) received royal assent last June. This Act modernized the Condo Act by:

• permitting condos to hold virtual or hybrid meetings;

• permitting voting to be done electronically; and,

• facilitating how notices and other documents are sent to owners.

These changes came into effect on October 1, 2023.  [Before then, these were permitted pursuant to exceptional provisions implemented in the context of the COVID pandemic.]

How notices can be sent to owners

Section 47(4) of the Condo Act regulates how notices can be given to owners.

Methods of accepted service include:

• by personal delivery to owners;
• by regular mail to the owner’s address of service;
• by dropping the notices at the owner’s unit or mail box unless the owner has requested that such manner of service not be used (and the owner has given another address of service);
• by electronic communication unless the Corporation has a by-law prohibiting service by electronic communications.

It is important to note that, to be able to send notices by email, the board must have decided to authorize such method of service.  This should be done, in our view, through a resolution by the board.

Can AGM packages also be served by email?

These changes to how notices can be sent to owners apply to any notices that are required to be given to owners under the Condo Act – which includes notices of meeting.

So, yes… Condo corporations can provide their AGM packages (and the notices leading to it) by email (unless the corporation has adopted a contrary by-law and unless owners have opted out of email service – on this, see below). Naturally, this also applies to notices required for all other meetings – not just the AGM.

What else does it apply to?

The ability to serve documents by email applies to more than just notices.  It applies to any “thing other than a notice required to be given to an owner or mortgagee under this Act”.  This would therefore also apply, in our view, to information certificates, financial statements, auditor reports, notice of future funding, etc. etc. (unless your by-law provides otherwise or unless the owner opted out of service by email).

Condos can modify this with a by-law

Condo corporations can regulate how/when the corporation can serve notices by email. For instance, a corporation could adopt a by-law that would:

• specifically prohibit service by email;
• identify some notices that cannot be served by email;
• provide for additional requirements to be followed when serving notices by email.

What email address can the corporation use?

To be able to send notices by email, the owner’s email address must appear in the records that the corporation is required to maintain under section 46.1 of the Act.

With the latest changes to the Condo Act, the corporation is entitled to add to its records and to use for service of notices any email address that the owner has used to communicate with the corporation (unless the owner has opted out).  At least this is how we interpret the regulation which authorizes the corporation to add to its records an email address that ‘the owner has provided to the corporation, in writing, for any purpose‘.  To us, this means that if an owner write an email to the corporation, the corporation is entitled to assume that the owner is prepared to receive notices at the same email address.

This wording brings a question to mind:  What if the owner uses more than one email address? Indeed, it is not unusual for someone to have (and to use) more than one email address.This wording of the regulation makes us wonder whether the corporation can use any and all email addresses from which an owner has written to the corporation. The wording of the regulation appears to allow it.

Can owners opt out?

For better or for worse, owners can opt out of email service. To do so, all they need to do is provide the corporation with a written request that the email address not be used to serve notices.

This request must come after the email address has been used.  This wording of the regulation may cause unecessary confusion. Indeed, this wording may be interpreted by some to mean that the owner must send their written request to opt out every time they send an email or any time they use a different email address when corresponding with the corporation.

In our view, a more practical and reasonable interpretation would make it sufficient for an owner to advise the corporation, once, that notices cannot be sent to them electronically. At least that would be our recommended interpretation.

Do note that, in our view, the Corporation is not precluded from communicating with the owner by email even if the owner has opted out of email service of notices. This regime (and its opting out provision) only applies to formal service of notices to owners required under the Act.

Steps to be able to send notices by email

In our view, the following steps should be taken by corporations wishing to send notices to owners by email:

• Pass a board resolution authorizing the giving of notices by email;
• Update your records to include email addresses.  You can do so anytime an owner provides you with an email address;
• Remember to update your records if an owner sends you a written request not to send them notices by email.

Naturally, important notices (including notices of lien or of power of sale) should also be sent by registered mail to the address of service.

Related posts

• Changes to how the Condo Act will deal with owners’ email addresses
• Virtual meetings and electronic voting are here to stay
• Are condo owners entitled to get access to the owners’ list of email addresses

 

Updated on Jan. 24, 2024 at 1pm