A recent court decision highlights the importance of management and the board’s role in the election and meeting process.
In Gangoo and Giuntoli v. TSCC No. 1737, two candidates running for election to the board (the “applicants”), collected proxies from owners and attended the management office the afternoon of the meeting to seek confirmation that the proxies were completed properly.
The applicants later submitted the proxies at the registration desk prior to the meeting and were advised shortly thereafter, by the chair, that the proxies were deficient and could not be accepted nor returned.
This is not the first instance in which proxies submitted prior to the start of a meeting are found to be invalid and as a result affects the outcome of board elections. The proxy form that is a mandated form, continues to impact many condominium owners who intend to vote but fail to complete the proxy form properly due to the complicated nature of the form.
There are three interesting points raised by the facts in this case:
Management’s role with respect to the proxy form
- In this case management circulated a proxy form without any further instructions or information to the owners as to how to complete a proxy form. Leaving it to the owners to figure out how to fill out the form based on the limited instructions in the form.
- It is not uncommon for management or board members to prepare notice packages without proxy instructions. The Condominium Act does not even require that a proxy form be included with the Notice of Meeting package nor require that a proxy form be sent to the owners.
- Once an owner completes a proxy form, should management have any role in reviewing the proxy prior to its registration to ensure it is valid or not? Section 53 of the Condominium Management Services Act (CMSA) and section 33 of the General Regulations outline the responsibilities of licensed managers around the solicitation of proxy forms but specifically permits managers to “facilitate” the use of proxies. Does facilitation mean that management should be reviewing the proxy form or commenting on it at all?
Invalid Proxies
- Does the corporation or management have a duty or obligation to review the proxy and advise the person submitting the proxy if it is invalid at that point in time so that to the proxy can be corrected? Does the proxy holder have a right to get the invalid proxy back or not and do invalid proxies form part of the records of the corporation?
Candidate Disclosure questions at the Meeting
- In this case the chair asked the candidates that had not submitted a written candidate disclosure form different questions than what was set out in the form, which was considered to have contributed to the finding of oppressive conduct.
The outcome
The Judge found that there was oppressive conduct and a breach of s.135 of Condominium Act relating to “the way in which the corporation, through management, handled the applicants’ proxies on the day of the election and the way in which the chair questioned the applicants about the required disclosure item regarding litigation.”
This leaves us with many unanswered questions and is a cautionary tale for the industry. Hopefully the Ministry can make note of this important decision and finally take the steps needed to remove proxies from the election and voting process and allow a more democratic process.
