Newsletter: Bill 91, Less Red Tape, Stronger Economy Act, 2023

by: Patrick Nelson

On October 1, 2023, new amendments to the Condominium Act, 1998 and the regulations will go into force, allowing condominium corporations to hold virtual meetings and communicate with owners by email.

Here is what your condominium corporation needs to know:

• Making some pandemic changes permanent. During the pandemic, the Ontario Government added a temporary "Schedule" to the end of the Condominium Act, 1998 (the "Act") to permit electronic communications and virtual meetings, among other things. These changes allowed condominium corporations to continue operations while their communities were in lockdown. That Schedule is being repealed and replaced with permanent changes throughout the Act and its Regulations.

• Electronic and hybrid owners' meetings are here to stay. Corporations will not need a by-law to hold an electronic or hybrid (i.e., both online and in-person) meeting or count an electronic ballot. Anyone who casts an electronic ballot before or at the meeting is deemed to be in attendance for the purpose of counting toward quorum. The Act only requires that all owners be able to "reasonably participate" in the meeting, but otherwise the board has discretion to decide how the meeting is held (including whether to have an electronic or hybrid meeting at all). Corporations can pass a by-law to restrict how electronic meetings are held, including prohibiting them entirely.

• Virtual/teleconference director meetings permitted without unanimous consent. Board meetings may be held virtually without having to get every director to agree beforehand. The only requirement is that all directors must be able to communicate "simultaneously and instantaneously" (i.e., be on a teleconference and/or Zoom call). A director who attends a meeting electronically or telephonically is deemed to be present for the meeting.

• Communicating with owners: the default is email. Provided that the Board decides to allow electronic communications, condominium corporations may email official communications and notices to any owner or mortgagee that has ever provided their email address in writing (e.g., sent an email). Email addresses are kept as part of the record (list) of owners and mortgagees, but are not to be disclosed to owners who request that record. Corporations may pass a by-law to restrict or regulate electronic communications, including what notices may be sent electronically, or prohibit electronic communication entirely.

Final Thoughts

The intent of the amendments is to continue  the pandemic-era changes that many condominium corporations found useful and convenient. Making email the default method of communication will be especially welcome as boards face inflationary pressures and look to trim administrative costs such as postage. Permanently allowing electronic/virtual meetings is also welcome, as these meetings have generally been received positively in the industry. The amendments do permit choice though; some corporations may continue to hold every meeting online long after the pandemic, and others may choose to enact by-law powers to ban electronic meetings entirely (though we would not recommend this). Every community is different, and whether to embrace or reject these changes is a decision for each board to make. 

Added on October 2 - Unit Owners Are Not Entitled to Email Addresses

We have become aware of a position being shared throughout the Ontario condominium community that says that, as of October 1, 2023, owners can get a list of their neighbours’ email addresses from their condominium corporation if they make a records request.

This is not accurate. While corporations are required to maintain a record of email addresses of owners and mortgagees, owners have no right to examine or obtain a copy of this record. See below.

Subsection 54(4)(d) of the Condominium Act, 1998, provides:

54 (4) The right to examine or obtain copies of records…does not apply to,

(a)  records relating to employees of the corporation, except for contracts of employment between any of the employees and the corporation;

(b)  records relating to actual or contemplated litigation, as determined by the regulations, or insurance investigations involving the corporation;

(c)  subject to subsection (5), records relating to specific units or owners; or 

(d)  any prescribed records. 

O. Reg 48/01, s. 13.11(2) describes the prescribed records: 

13.11(2) The following are prescribed records for the purpose of clause 55 (4) (d) of the Act:

1.  A record of an owner’s or a mortgagee’s electronic communication address that section 46.1 of the Act requires the corporation to maintain.

2.  A report or opinion from a lawyer or licensed paralegal to a corporation with respect to specific units in the corporation or owners, purchasers or mortgagees of a unit in the corporation.

3.  Records that contain communications for the purpose of obtaining the report or opinion described in paragraph 2 or that are in respect of the report or opinion.

4.  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.