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#18872
Condo Act (purported) over-ride struck down : NO POWER TO PROHIBIT PROXY GIVING SSCC 431 & 434 2018/05/28 20:37  
Those anonymous folks at CondoMadness, have alertly picked up a News Release.

Its about a gob-smacking or troubling attempt to persuade a flat out judicial override of proxy-giving. The vires for stripping proxy giving power, was urged as alleged mis-representation .

"It's not true, so we wanna strip everyone of the legislated right to give proxy ! ?" ( Barring all proxies at this recreational community it is claimed would tip the numbers against the requistioners. A common attempt in southern U.S. HOA disputes, snowbird owners only seasonally in attendance )

( from The Condominium Act 1998 c 19 as amended :

. . . Method of voting

52 (1) Votes may be cast by,

(a) a show of hands, personally or by proxy; or

(b) a recorded vote that is,

(i) marked on a ballot cast personally or by a proxy,

(ii) marked on an instrument appointing a proxy, or

(iii) indicated by telephonic or electronic means, if the by-laws so permit. 2015, c. 28, Sched. 1, s. 48 (1). )


The May 22 2018 Superior Court judgment - not yet at canlii.org - strikes down two Boards' applications claiming that proxy usage can be prohibited by court order where a Board decides - and seeks to persuade the civil judge - to prohibit their issue due to alleged misrepresentations by the requisition-seekers. Sort of like inventing platforms for unilateral punishments without a platforming law.

The judgment declines to support such judicial power to override the legislation.

And in actually reviewing the requisition documents here, the judge validates the procedural due process followed so far by the requisition group, and awards it $14 K costs.

Citing ( with URL link ) the rejection of Simcoe Standard C.C. numbers 431 and 434, is the News Release as follows :

May 24/18 News Release ( Shibley Righton LLP ) http://www.shibleyrighton.com/News/~205-Winning-with-Shibley-Righton ( no author attributed

from the "linked" text :

" . . . ( Use of proxies at the ( refused ) meeting )

. . . ( 16 ) As I have outlined above, the applicants seek to deny the use of proxies at the meetings of the owners to vote on the possible removal of directors, because in their view the respondent has circulated misleading information in the community, and there is a risk that proxies will be obtained based on misleading information.

( 17 ) . . . It would affect any owner who wants to vote at the meetings in relation to removal of directors, but for whatever reason finds it inconvenient or even impossible to attend. . . .

( 22 ) . . . . Both the Condominium Act 1998 s 52 and the by-laws of these particular corporations provide for the use of proxies at meetings if certain formal requirements are met. Indeed the Act now provides for a mandatory form . . . I am not persuaded that I have authority to deny owners the statutory right to vote by proxy. . . ." unquote
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#18874
NO POWER TO PROHIBIT PROXY GIVING - Simcoe S. C.C. s 431 & 434 2018/06/06 23:03  
Belatedly fulltext onto canlii.org

Simcoe C.C.s # 431 & 434 v Marc Atkins 2018 ONSC 3105 issued May 22/18 http://canlii.ca/t/hsd1b

with a troubling aspect reported, hopefully some sort of misunderstanding . . .

" . . . [12] Counsel for the applicants initially argued that the requisitions failed to meet with statutory criteria of noting which of the directors for whom removal was sought occupied a position on the board for which voting was reserved to owners of owner-occupied units.

I note that the applicants did not include the requisitions in their application material.

The respondent did include the requisitions in his materials.

The requisitions clearly on their face include a column which indicates which directors hold positions that are elected by vote of owner-occupied units.

After hearing the submissions of counsel for the respondent on this issue, counsel for the applicant agreed that he had been mistaken, and effectively conceded that the requisitions on their face comply with the statutory criteria in s. 46 of the Condominium Act 1998. . . . "
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