In a recent case (Janet Cangiano v. MTCC No. 962), the Ontario Condominium Authority Tribunal (the “Tribunal”) refused an owner’s request to receive unredacted proxies that would disclose the owners’ names and unit numbers.
The owner wanted to audit the election of directors “with full transparency” as more than double the number of proxies had been submitted compared to prior years’ elections. She felt that she needed to see the unredacted proxies to verify that the proxies were in fact signed by actual owners and that they were correctly completed.
Legal counsel for the owner unsuccessfully argued that a proxy form is not private, as owners who appoint a proxy are waiving their right to privacy by appointing a third party to attend the owners’ meeting on their behalf. The Tribunal relied on the regulations to the Condominium Act, 1998 (the ”Act”) which clearly state that the right to examine or obtain copies of records under section 55 of the Act does not apply to “any portion of a ballot or proxy form that identifies specific units in a corporation or owners in a corporation unless a by-law of the corporation provides otherwise.” The corporation had no such by-law in place.
While the corporation was successful on the merits of this application, the Tribunal refused to award the corporation costs of approximately $3000, representing the legal fees it had incurred. The Tribunal stated that it had no reason to conclude that the owner’s application for the unredacted proxies was either frivolous or not filed in good faith. The legal fees that the corporation spent will be ultimately paid by all of the owners as part of their common expenses.
This case is just one of many cases where disputes have arisen as a result of claims or suspicions of proxy fraud or irregularities. These problems can be eliminated with the use of electronic voting. Changes enacted in November, 2017 to the Act allow Ontario condominium corporations to conduct owner voting by electronic means if the corporation has enacted an electronic voting by-law. For more information click here.
Electronic voting enables owners to vote from anywhere using a smartphone, tablet, laptop or desktop computer. Owners will not need to appoint proxies (electronically or in paper) in order for their vote to be counted. Electronic voting eliminates the need for completing, distributing, collecting and managing a proxy process. Proxy errors and fraud and related lawsuits will be eliminated, as will requests to examine proxies.
