Democracy returns
On 28 August 2006 Mr. Atrens was appointed the Administrator of YCC
#42 by order of Justice Lederman. By the end of 2010, he wanted to be
relieved of
this position and on 11 December 2011, Justice Brown directed that a
referendum be held to determine whether the owners wanted the
condominium to be continued under the management of an administrator or
an elected board of directors.
The owners overwhelmingly voted to have a board of directors
The voting
procedures
On 02 August, 2012, Justice Newbound gave guidance on how the election
process would be conducted as there was a disagreement between how Mr.
Atrens thought the voting should be held and what the several owner
factions wanted. (In court, Andrew Atrens spoke through George Vella,
the corporation lawyer.)
The bylaws of the condominium provides for five directors, to be
elected in rotation. At the upcoming election, two directors were to be
elected for one year, two were to be elected for two years and one
would to be elected for three years.
Director elected
by owner-occupiers
Because unit owners occupy over 15% of the units, one position on the
board is to be elected only by owner-occupiers.
Mr. Atrens wanted the winning candidate for this position to be elected
for only one year. Justice Newbound disagreed saying that an
owner-occupier has a more direct interest in the affairs of the
condominium than an owner who has rented out his or her unit so this
election will be for a three-year term.
Two elections
Mr. Atrens stated that some owner-occupiers may wish to run for the one
position to be elected only by the owner-occupiers and if unsuccessful,
run for one of the remaining four positions.
Mr. Atrens was opposed as this would cause logistical problems at the
meeting to elect directors and that the court therefore should order
that any owner-occupier candidate that puts his or her name forward for
the one position should not be entitled to run for any of the other
four positions.
Justice Newbound saw no basis for making such an order as he saw it as
limiting the democratic rights of the owner-occupiers. He ruled that no
disability should be placed on a unit owner, either for running or
voting, unless provided for in the Act, the Declaration or the by-law
of the condominium corporation.
He also directed that there should be one meeting of the owners to
elect a new board of directors. The first vote is for the
owner-occupiers to elect a director for a three-year term. Any
candidate who has unsuccessfully run for the three-year term is
entitled to run for one of the remaining four positions.
He also ruled that a second vote would be held to elect directors to
the remaining four positions. The two owners receiving the highest
number of votes shall be elected to two-year terms and the two-owners
receiving the next highest number of votes shall be elected to one-year
terms.
Proxies
Some owners wanted restrictions put on proxies as to when they must be
filed and how they would be stored, including a suggestion that they be
deposited in a ballot box.
Justice Newbound ruled that any restriction must be found in the Act,
the Declaration or the by-laws of the condominium corporation. The Act
permits all owners to attend the meeting and that votes may be cast
either personally or by proxy and he saw no basis to restrict the right
of an owner to have a proxy delivered at the time of the meeting.
He also ruled that the proxies needed to provide for two votes, one for
the owner-occupier position and the second for the other four positions.
Notice of
candidates running for office
George Vella pointed out that some owners may indicate in writing,
prior to the notice of meeting to be sent out, that they want their
names to be included in the notice of meeting as a person who has
indicated their intention to be a candidate and that there should be a
date by which such an intention should be provided to the Administrator.
George Vella stressed, a couple of times,
that the corporation included
the names of the candidates solely as a courtesy and that it
was not a
requirement of the Act.
Justice Newbound disagreed and ruled that the corporation should
determine the date of the meeting and the date that notice of the
meeting will be sent, and then notify all owners of that intended date
three-weeks in advance.
The notice is to be given in accordance with the Act and by-laws and
posting the names of some of the interested candidates on notices
in
the buildings will not suffice as proper notice.
The owners should be given until one day before the notice of the
meeting is to be mailed out to indicate that he or she wishes to be a
candidate.
The ruling also ordered that a retired judge be the supervisor of the
meeting at which the votes are taken and that once the supervisor had
reported to the court on a successful election of the board of
directors, Mr. Atrens shall be discharged as administrator.
An important
ruling
As a witness to the proceedings, I was impressed with Justice
Newbound's determination to insure that all owners had
their democratic rights respected during the election process.
He was convinced that candidates who were unsuccessful in being elected
as the owner-occupier director would lose some of their rights if they
were denied the right to run for one of the other four
positions. If
this made it more difficult to conduct the election process, then so be
it.
He also would not allow the administrator to merely post the names of
some of the candidates in the lobbies. All interested parties must have
the opportunity to have their names included in the meeting notice.
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