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turn, of its duty to make such minutes available upon receiving a request in accordance with the Act . It has been noted that some corporations did not have board meetings, during the pandemic; in fact, some cases of corporation business, which should have been carried out at an official board meeting. was conducted informally in various forms. While the pandemic may be recognized as an excuse for delay, a condominium corporation exists for the sole purpose of managing the property on behalf of the owners and must conduct its activities in accordance with the requirements of the Act ., including fiscal responsibility and the keeping of financial records. Condominium corporations cannot operate in accordance with law without holding board meetings where resolutions are duly passed and every condominium bears a strict, clear, and ongoing statutory duty to keep adequate records of such meetings, i.e., minutes. The lack of board meeting minutes is a significant breach of the Act and introduces uncertainty as to the authority of the condominium ’ s transactions and affairs, impacting fundamental rights of unit owners to have access to a record of the condominium ’ s key decisions, including decisions relating to budgets, enforcement actions, banking arrangements, and contracts for services. The lack of board meeting minutes cannot be considered either acceptable or reasonable. The Annual General Meetings (AGMs) are owners ’ meetings that the condominium corporations must hold within specific timeframes noted in the Act . AGMs must be held within the deadlines under the Condominium Act (including extensions applicable during the pandemic). AGM Minutes must then be prepared. The COVID - 19 Response and Reforms to Modernize Ontario Act, 2020 , which established temporary provisions for hosting an annual general meeting, did not waive the requirement for hosting the meeting(s). The temporary provisions include: Condominium corporations can hold owners ’ meetings and votes may be cast by telephonic or electronic means, without the need for a by - law that explicitly allows this. Owners are deemed to be present at the meeting and count towards quorum in accordance with the temporarily amended section 50 (2) of the Condo Act if they: Personally connect to the meeting; Have an individual represent them by proxy (using the mandatory proxy form) to connect to the meeting on their behalf; or Vote prior to the telephonic or electronic meeting. Note that advance votes can only be used for and
count towards quorum for the items voted on and set out in the meeting agenda.
Condominium corporations can use electronic means to deliver meeting - related materials (e.g., meeting notices) to owners, even if there is not an agreement between the owner and the condominium corporation to allow this. It is important to remember that the temporary provisions do not cover mail - in votes. Votes cast in advance through mail - in ballots can only be counted if the condominium corporation ’ s by - laws allow for mail - in voting. RESPONSIBILITY OF THE CORPORATION TO KEEP ADEQUATE RECORDS The word ‘ adequate ’ is frequently referenced as they describe reporting in corporation records, especially in the minutes of meetings; but also other areas of corporation business. Inasmuch as corporation records are concerned, adequate (from the dictionary) could be defined as “ sufficient for a specific need or requirement ”. Some cases noted: At the very least, all managers and directors should be knowledgeable in the requirements to maintain records that may be requested by owners. ” The Tribunal noted that the corporation is responsible for maintaining corporation records and not its condominium management provider. It is also worth commenting that a condominium corporation and its board cannot wash its hands of its duties by abdicating them to its manager. The corporation, as represented by its board, is the party responsible for satisfying records requests and is accountable for failing to ensure that the manager is adequately equipped, informed, and instructed so the request can be properly fulfilled. An owner may request records to which they are entitled and expect an appropriate Response to the Request for Records from the Board. In one of the cases, it was offered that the Act requires minutes to be adequate “ to document a board ’ s business transactions and to show how the Corporation ’ s business affairs are controlled, managed and administered ”, with “ sufficient detail to allow Owners to understand what is going on in their Corporation, how decisions are being made and what the financial basis is for the decisions. ” Section 55 (1) of the Act lists “ a minute book containing the minutes of owners ’ meetings and the minutes of board meetings ” as one of the records a corporation “ shall keep. ” Section 13.1 (2) 2 of O. Reg. 48/01 specifies this record shall be kept “ at all times ”. The minutes of board meetings have always been among the records listed in section 55(1). The approved financial statements, the auditors report, the current plan for future funding of the reserve fund and the
CCI Review 2022/2023 - 2 November 2022 Page 28
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