Province failed to clarify difference between online, proxy votes

Province failed to clarify difference between online, proxy votes

Posted by: Audrey Loeb , January 21, 2019

Changes to Ontario's Condominium Act allowing electronic voting is not the panacea the government had envisioned, Toronto condominium lawyer Audrey Loeb tells AdvocateDaily.com.

The Act was amended in November 2017, which was the first overhaul of the province’s condo law in more than 16 years. One of the changes allows electronic voting, which “is separate and apart from the proxy vote,” says Loeb, partner with the Toronto office of Shibley Righton LLP.

However, the provision has only led to confusion, she says.

“The more the government has involved itself in trying to correct things in the Condominium Act, the more challenging the whole thing has become for many people. It’s not simple,” Loeb says.

Prior to the amendments, if condo owners were unable to attend a meeting they could assign a proxy to vote on their behalf, she says.

Electronic voting was supposed to make it easier for condo owners to get involved in meetings, but instead, the lines have been blurred, Loeb notes.

“Initially, the purpose of e-voting was the notion that if you were unable to attend a meeting, you could participate online,” she says. “However, it’s become bastardized because the government didn’t make the provision clear.”

Loeb says the confusion lies in how to use online versus proxy voting.

“So you are supposed to use a proxy if you can't attend a meeting, and you are supposed to use e-voting if you are attending virtually,"" she says. ""What has happened is people think that since there’s no restriction, they can cast an online ballot and don’t have to use a proxy even if they’re not participating in the meeting electronically.”

She says part of the problem is the government's failure to clarify the circumstances in which e-voting can be used “so it appears to be a duplicate of the proxy.”

“Originally, the intention was that electronic voting would be done if you are participating in the meeting, but that’s not how the government set it up,"" Loeb says. ""To use electronic voting, you have to be present at the meeting. If a person is present because they electronically voted, then that means the numbers in attendance at the meeting are higher and the voting majorities will be affected accordingly. It will make running the meeting more challenging.""

She says the province has made the process more complicated and it’s difficult to predict how it’s going to play out.

“What's supposed to be consumer protection legislation to simplify things has not,"" Loeb says. “Every time the government changes legislation, we lose clarity and new questions arise.”