No Bylaw Required! The COVID-19 Pandemic – Strata Corporations and Electronic Meetings

Lawyer in Vancouver

Many strata corporation do not have bylaws allowing for council meetings and/or general meetings to be held by electronic means.  However, as a result of a ministerial order issued by the BC Government on April 17, 2020, all strata corporations, whether they have a bylaw or not, are permitted to  hold council meetings and/or general meetings by electronic means until the state of emergency made as a result of the COVID-19 pandemic expires or is cancelled.

By way of background, the Strata Property Act (“SPA”) provides that a strata corporation may, by bylaw, provide for attendance at an annual general meeting (AGM) or special general meeting (SGM) by telephone or any other method, if the method permits all persons participating in the meeting to communicate with each other during the meeting (see s. 49).  A person who attends a meeting by such electronic method is deemed to be present in person at the meeting.

Although the standard bylaws to the SPA contain a bylaw allowing council meetings to be held by electronic means, the standard bylaws do not contain a bylaw allowing AGMs or SGMs to be held by electronic means.

Accordingly, as a result of the COVID-19 pandemic, including physical distancing recommendations and the BC government formally prohibiting all gatherings of 50 or more people, and informally recommending against any gatherings, many strata corporations have started thinking about holding electronic meetings instead of “in person” meetings, but have found themselves without bylaws permitting electronic meetings.

As a result of the Minister of Public Safety and Solicitor General issuing Ministerial Order no. M114 under the Emergency Program Act on April 17, 2020, a strata corporation can now hold council meetings, AGMs and SGMs by electronic means, even if the strata corporation does not have bylaws permitting such electronic meetings.  This order specifically allows a strata corporation, despite anything in the SPA or a regulation made under the SPA (including a bylaw of strata corporation), to provide for attendance, or voting in person or by proxy, at a meeting authorized or provided for under the SPA or a regulation made under the SPA (including an AGM or SGM) by telephone or any other electronic method, if the method permits all persons participating in the meeting to communicate with each other during the meeting.

While being able to hold electronic meetings without a bylaw removes one hurdle for strata corporations, holding electronic meetings raises a number of questions and potential issues for strata corporations to carefully consider before calling and holding any electronic meeting.  The following are some such questions and issues for strata councils and strata managers involved in planning electronic meetings to think about:

1) The SPA Still Applies:

Other than the changes effected by the ministerial order, the SPA still applies and this means that a strata corporation holding an electronic meeting will still need to comply with meeting requirements in the SPA and in the applicable strata corporation’s bylaws for council meetings and general meetings, such as requirements for notice of meeting, quorum, meeting attendance and participation, and voting.

2) Security and Privacy:

Given the sensitive nature of some of the topics discussed at council meetings and at general meetings and the potential risks associated with electronic meetings (for example, see this CBC article and this New York Times article), strata corporations will need to consider security and privacy issues and choose a mode (such as telephone or online meeting room) and a service provider for their electronic meeting that offers appropriate security features.  In making decisions on the appropriate electronic platform and service provider, consider:

  1. Whether to use a service that allows a randomly generated meeting identification and password to be produced for each meeting – this may help to reduce the risk of unknown and unwelcome people attending;
  2. Not publicly sharing, such as on social media, links that allow people to join a meeting directly or passwords or codes to join a meeting;
  3. Using a service that will allow the strata corporation to have some degree of control over who enters the meeting, such as services that have an option that can be turned on to require the meeting host to admit people into the meeting; and
  4. Turning off any ability of participants to record the meeting, save chats or screen share.
3) Size of Meeting:

For strata corporations with a large number of strata lots, one of the biggest issues to consider will be whether it is possible to hold and, if so, how to hold an electronic AGM or SGM with a very large attendance.  In making decisions on whether to hold an electronic meeting given the anticipated number of participants, consider:

  1. There is no clear “magic number” for the upper limit on attendees at an electronic general meeting. To some extent, this may depend on the subject matter of the resolutions on the agenda of the meeting;
  2. Different platforms will have different capacities for the number of participants;
  3. Even if a service can accommodate a large attendance, a large attendance may make a meeting more challenging to manage, particularly during the discussion portions of a general meeting; and
  4. Whether a restricted proxy meeting may be a more appropriate way to proceed with the meeting (see below for issues and questions regarding proxies and CHOA’s bulletin for further information regarding restricted proxies).
4) Sign In/Attendance:

While the SPA does not require sign in, attendance must be tracked for quorum and voting purposes.  It is likely to be more difficult to identify attendees (including tenants, occupants, family members and spouses of owners) and keep track of eligible voters, unless the meeting includes video, the attendees use video, and the host already knows the attendees.

5) Meeting Assistance:

Strata corporations will have to think in advance about any meeting assistance that they usually have at their meetings, such as translation services, and any additional meeting assistance that may be required because of conducting an electronic meeting and how to practically incorporate such assistance in an electronic meeting, if possible.

6) Voting:

Voting in an electronic meeting will be a significant issue to be addressed by those planning the electronic meeting.  In that regard, the meeting planners should consider:

  1. How a vote is to be conducted is likely to be influenced by the form of electronic meeting. For instance, an electronic meeting conducted by phone likely presents fewer options for voting than an online electronic meeting;
  2. Some services may have an option for attendees to use voting buttons or answer a poll, but this may have limitations, such as not being able to take into account votes to be cast by proxies and not preventing persons who are not eligible to vote from voting;
  3. If a secret ballot is requested and permitted by the strata corporation’s bylaws, this may be very difficult, if not impossible, to conduct;
  4. Services that allow smaller groups of attendees, such as the host and a single eligible voter, to separate or “break out” from the main meeting may assist with secret ballots, though this would still not be a true secret ballot as the host would know how the eligible voter votes;
  5. There may be services separate from electronic meeting services that can be used to facilitate voting, but these may also pose challenges and/or have their own limitations that users must be aware of in advance of utilizing them; and
  6. The standard bylaws state that, “[i]f a precise count is requested, the chair must decide whether it will be by show of voting cards or by roll call, secret ballot or some other method” (emphasis added). The ability of the chair to decide “some other method” for deciding a precise count may allow for different options in the context of an electronic meeting.
7) Proxies:

Under s. 56 of the SPA, an owner may give a proxy to another person to permit that other person to vote on their behalf at a general meeting (there is no provision in the SPA for the use of proxies in connection with council meetings). Certifying proxies, an agenda item for a general meeting under the standard bylaws, and the casting of proxy votes is likely to present an increased challenge in the context of electronic meetings, bearing in mind that a proxy is not a ballot but the grant of authority of someone other than the owner of a strata lot to vote at a general meeting on the owner’s behalf.

Section 56 of the SPA states that a document appointing a proxy must be in writing and signed by the person appointing the proxy.  Accordingly, consider whether it makes sense for eligible voters to send in their proxy appointments in advance of the meeting for certification.  However, this will not ensure that the appointed proxy actually attends the meeting and this would still likely need to be confirmed at the meeting.

8) Other Considerations:

The following are some additional considerations for electronic meeting planners to think about:

  1. As a result of the questions and potential issues raised above, a strata corporation will want to think carefully about whether to hold an electronic general meeting and, if so, what to include on the agenda;
  2. Holding electronic information meetings ahead of the general meeting (or indeed even before a notice package is issued) may be helpful in providing information and facilitating discussion on matters that the council wishes to have owners consider at a general meeting;
  3. Using a service that requires the host to admit people to a meeting and has a function to alert the host when someone leaves may assist a strata corporation in keeping track of attendance and ensuring quorum is maintained during the course of the applicable meeting;
  4. As AGMs and SGMs sometimes function as a forum for questions and discussion, a strata corporation should be aware that, depending on variations in access to internet/phone and the quality of such access by each of the participants, not all eligible participants may be able to effectively communicate during an electronic meeting; and
  5. While there are various services available to use for holding electronic meetings (such as Zoom, Skype, Google Hangouts, Go ToMeeting, and many others), each will have its own benefits and limitations. A strata corporation should get to know the forum it plans to use before holding an electronic meeting and consider conducting at least one “dry run” in order to understand how the meeting will work in practice and some of the benefits and limitations. Even if you are familiar with any of these platforms for work-related meetings or social events, the requirements for and dynamics of a council meeting or a general meeting will typically be quite different.

Since a strata corporation holding an electronic AGM or SGM has historically been a relatively rare occurrence, best practices for such meetings will likely emerge over time and with experience.  For further information on this topic see CHOA’s information release and bulletin.  There will undoubtedly be much more written on electronic meetings within the strata corporation context.  A strata corporation should consider getting legal advice before deciding to hold and on holding an electronic general meeting.

Please contact any of the Strata Property Group lawyers at Clark Wilson LLP for further information.

For more legal analysis of how COVID may affect your business, or personal affairs, visit Clark Wilson’s COVID-19 Resource and FAQ pages