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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