12/04/2018 – Jurisdiction Ontario
Part 62 published on 01/06/2018
Court confirms election results and role of chair
The condominium corporation applied for an order revising the results of a Directors’ election held during the condominium corporation’s recent annual meeting. The condominium corporation asserted that the scrutineers at the meeting had failed to account for more than 30 votes under a particular proxy that had allegedly been filed with the meeting.
The Court found that the proxy in question had not been filed with the meeting and confirmed the election results as declared by the chair of the meeting, based on the vote count determined at the meeting by the scrutineers and provided to the chair.
The Court also noted that the meeting chair had ruled (and so instructed the scrutineers) that a proxy vote was only to be counted if the signatory’s initials were present in certain locations on the proxy instrument. These instructions were clear and unambiguous, and there had been no objection to the instructions at the meeting. Based on the instructions, the proxy instrument in question (if it had been filed) would have been rejected by the scrutineers in any event.
In summary: The Court confirmed the election and dismissed the condominium corporation’s application.
The Court said:
The general understanding is that it is the duty of the chairperson of the condominium owners’ meetings to enforce the rules of order including instructing scrutineers. The chairperson decides questions of validity when they arise, including decisions as to the validity of ballots and proxies.
The chairperson has the responsibility to examine all ballots, decide on their validity, count the votes, cast and declare the result. In the case of uncertainty, the matter of proxy validity should be referred to the chairperson for him or her to decide. Once the chairperson makes a declaration as to the result of the vote, it is final and binding unless otherwise reversed by the court.
Editorial Note: The Court did not decide whether or not the chairperson’s instructions in relation to proxies were correct. Rather, the Court deferred to the chair on this. In other words, it appears that a Court will be reluctant to overturn a decision of a meeting chair as long as the decision is not completely contrary to condominium law or basic corporate procedure and as long as there is no serious ambiguity or uncertainty in the chair’s instructions.