Electronic Annual General Meetings & Special General Meetings of Condominium Corporations can now be held “electronically”

Electronic Annual General Meetings & Special General Meetings of Condominium Corporations can now be held “electronically”

As a result of Covid-19 and the many health orders limiting face to face interaction, it became imprudent for condominium Boards of Directors and owners of condominium to hold in person Annual General Meetings & Special General Meetings.  This dilemma has now been solved by Bill 53 - SERVICE ALBERTA STATUTES (VIRTUAL MEETINGS) AMENDMENT ACT, 2021.

So long as a condominium corporation’s bylaws do not expressly prohibit electronic meetings, this amending act provides that Condominium Corporations (as well as Residents Associations, Home Owner’s Associations, Corporations, Societies and Cooperatives) may now hold meetings electronically.

Subsection 1(1) of the Condominium Property Act RSA 2000 c-22 has been amended to read after clause (j.1):

(j.2)   “electronic means” in respect of attending or holding a meeting, means a method of electronic or telephonic communication that enables all persons attending the meeting to hear and communicate with each other instantaneously, including, without limitation, teleconferencing and computer network-based or internet-based communications platforms;

and Section 31 has been amended to read as follows:

             Meetings of Board or Corporation

Manner and venue

31(1) Unless a corporations’ bylaws expressly provide otherwise,

(a)    A person entitled to attend a meeting of the corporation or of its board of directors may attend the meeting by electronic means,

(b)    A meeting of the corporation or its board of directors may be held entirely by electronic means,

(c)     A person attending a meeting by electronic means under clause (a) or (b) who is entitled to vote at the meeting may vote by any electronic, telephonic or other method that the corporation has made available for that purpose, and

(d)    A person attending a meeting by electronic means under clause (a) or (b) is deemed for the purposes under this Act to be present in person at that meeting.

(2) Meetings that are not held entirely by electronic means must be held at a location within the municipality in which the units are located unless an ordinary resolution to hold the meetings in another location is passed at a general meeting of the corporation.

Condominium Corporations should no longer hold off giving notice of their Annual General Meetings and proceed to hold them electronically if necessary.

The Alberta Court of Queen's Bench has determined that the Alberta Human Rights Act applies to condominiums

I have written on the topic of the Alberta Human Rights Act, RSA 2000, c A-25.5 before at:

http://albertacondominiumreporter.blogspot.ca/2013/05/condominium-complexes-are-private.html

Based on the recent decision of the Court of Queen's Bench in Condominium Corporation No 052 0580 v Alberta (Human Rights Commission) (the "Goldsack case") the Alberta Court of Queen's Bench has determined that the Alberta Human Rights Commission has jurisdiction to hear human rights complaints. 

My original blog was partly in response to a blog by Jenifer Koshan of the University of Calgary.  Ms. Koshan has blogged in response to the Goldsack decision and I thank her for her collegiality.  I will not exhaustively respond to the further comments of Ms. Koshan.  However, I can comment that the reasoning in the University of British Columbia v. Berg case is worthy of further study.

The Berg case was the core basis upon which the Court of Queen's Bench made its determination in the Goldsack case. I contemplate going forward that the tests identified in Berg may have application to complaints made to the Human Rights Commission in Alberta.  In this respect, and without limitation, whether the alleged accommodation, service or facility subject of a complaint satisfies the relational test.  I quote from the Supreme Court of Canada decision in Berg in this regard:

"This reasoning is directly applicable to any selection process used by the School in this case.  Eligibility criteria, as long as they are non-discriminatory, are a necessary part of most services, in that they ensure that the service reaches only its intended beneficiaries, its "public", thereby avoiding overuse and unnecessary depletion of scarce resources.  The benefits of such screening tools, however, should not come at the cost of excluding the protection of human rights legislation.

This is not to say that all of the activities of an accommodation, service or facility provider are necessarily subject to scrutiny under the Act just because some are.  But a quantitative approach still does not help to define what smaller segment of the entire population might suffice.  As long as the debate remains centred on the number of people who can use the service or facility, it will be very difficult to draw lines of inclusion and exclusion on a principled basis because of the varied nature of the services and facilities and service and facility providers which will fall to be considered.

Instead, in determining which activities of the School are covered by the Act, one must take a principled approach which looks to the relationship created between the service or facility provider and the service or facility user by the particular service or facility.  Some services or facilities will create public relationships between the School's representatives and its students, while other services or facilities may establish only private relationships between the same individuals."

...

"The idea of defining a "client group" for a particular service or facility focuses the inquiry on the appropriate factors of the nature of the accommodation, service or facility and the relationship it establishes between the accommodation, service or facility provider and the accommodation, service or facility user, and avoids the anomalous results of a purely numerical approach to the definition of the public.  Under the relational approach, the "public" may turn out to contain a very large or very small number of people.

 For example, Canada or Quebec Pension Plan benefits are provided to millions of Canadians, yet not to the equally large number of Canadians who have not yet attained the qualifying age.  Can it be said that the provision of such benefits should not be free from discrimination because of the established eligibility criteria which ensure that such benefits reach only those who have paid into the fund and are intended to receive them?  Or consider a privately-owned centre which publicly advertises its services or facilities to treat a rare disease, from which only two or three people in Canada suffer.  Statistically speaking, 99.99 percent of the population cannot use this service or facility, since they do not suffer from the disease and are not part of its "public".  Yet could the legislature have intended that the institution could purport to serve the public, then extend its services or make its facilities available only to male applicants?"

The relational test may be applied in some circumstances to suggest that the accommodation, service or facility provided by a condominium corporation and subject of a complaint may not have a public.  The following words from the dissenting opinion from the Berg case express this sentiment and the concern with the decision of the majority in Berg:

"While I agree that human rights legislation should, where possible, be given a broad and purposive interpretation, that interpretation has to be realistic.  If s. 3 of the British Columbia Human Rights Act is given the reach sought in these appeals there would be, in effect, no services that would not fall within the scope of "services customarily available to the public"."

Notwithstanding this minority decision, the Berg decision has been referred to in almost 300 decisions.  As an example of the types of decisions which will have to be made a search of CanLii lead me to the 1996 Supreme Court of Canada decision in Gould v. Yukon Order of Pioneers.  The Court considered the Berg decision and concluded that the services provided by the Yukon Order of Pioneers were outside of the ambit of the subject Human Rights legislation. I think this may be a portent of the type of analysis which may have to be made by the Courts in Alberta  as a consequence of the Goldsack decision.  

 

Audits of Condominium Corporations

I am delighted to see other professionals making the time to share information which will assist boards of directors, property managers and owners in operating condominiums effectively.  In this regard, I share a link to an accountant's perspective on some of the accounting obligations of a board of directors with a focus on audits:

http://www.albertacas.ca/docs/member-advisory-2012/january-2014-audits-of-condominium-corporations-nbsp-.pdf?sfvrsn=0

Directors' Liability

This is a good article from a few years ago relating to condominium directors liability; this will be even more salient once the amendments to the Condominium Property Act (Alberta) are proclaimed.

https://issuu.com/lsgraphics/docs/cci-t-condovoice-spring2014/45?e=1206437/7747339

Are condominium corporations exempt from the payment of tax in respect of income received?

Section 149 of the Income Tax Act [Canada] (the "ITA") is the section which condominium corporations must look to determine whether their conduct attracts the requirement to pay tax.  This section covers exemptions from taxation for non-profit organizations.  In general terms non-profit organizations are those operated for social welfare, civic improvement, pleasure or recreation or for any purpose other than profit. The Canada Revenue Agency ("CRA") has indicated generally that condominium corporations are exempt from taxation not because they are condominium corporations but because they meet the test provided by section 149 of the ITA.  Interpretation bulletin IT 496R explicates this test in respect to non-profit associations.

CRA has indicated there are two possible perspectives that may be taken with respect to income received by a condominium corporation from the leasing of a cell phone tower.  The income is either received by the condominium corporation on behalf of the individual owners and as such it flows through to the individual owners and should be claimed as income by each owner.  In contrast and based on provincial legislation CRA has indicated that usage of income from a cell phone tower to reduce the amount of condominium contributions payable by owners may lead to the nonprofit status of the common corporations being lost. My review of the Condominium Property Act (Alberta) does not reveal any limitation which prohibits condominium corporations from attributing the income received from a cell phone tower to owners and paying this out to owners. The Condominium Property Act (Alberta) also does not restrict condominium corporations from simply crediting the income to each of the owners.  

Condominium corporations must hope that CRA does not insist that the income from cell phone towers be paid to owners otherwise CRA may conclude that the nonprofit status of condominiums is lost.  Condominium corporations will also have to be mindful of section 149 of the ITA when considering whether to install solar panels or photovoltaic panels with the intention of producing electricity and selling it to the utility system. Such action would also be considered to be a profitable activity not unlike cell phone towers and also could lead to the CRA taking the position tax should be paid by condominium corporations on income received from cellphone towers and from solar panels.

Yes you can keep your cats even though you do not have written consent; a small movement towards applying Administrative Law principles in condominium law

In the recent Alberta case of Condominium Plan No. 7621302 v. Stebbing,  Master W.S. Schlosser addressed the application of administrative law in context of a dispute over 2 cats.  Though not technically applying administrative law principles to his decision they were discussed in obiter or in passing:

Master Schlosser came to a practical solution of finding a breach for failure to obtain consent but then relieved the owner from forfeiture (an equitable remedy), without stating so and stayed the enforcement of the Order until the cat passed on:

The message is clear to condominium corporations: be consistent with the application of bylaws and do not withdraw implied consent without affording owners some ability to participate in an administrative process.  In light of the Government of Alberta's proposal to create an Administrative Board to hear condominium disputes the comments of Master Schlosser could be prescient.