Owners canvassing other owners

SSCC Nos. 431& 434 vs Marc Atkins
Ontario Superior Court of Justice
Court file No: CV-18-596544
Date: 22 May 2018

Marc Atkins is a unit owner who lead a requisition to remove the board of directors of the two condo corporations. The condo corporations are vacation properties with a majority absentee owners.

The underlying issue is requisition meetings to remove the two boards of directors due to a special assessment that doubled the common maintenance expenses for the two condominiums, and litigation commenced by the condominium corporations against the condos' developer.

The directors refused to call the meeting unless the requisitionists agreed:
1. not to collect proxies; and
2. not to communicate with other owners before the vote.

The boards claim that Mr. Atkins had engaged in communications with owners of units that aim to discredit the current boards by providing misleading information. The directors also argue that Mr. Atkins is effectively acting as an agent of the developer of the condominiums against whom the boards have commenced litigation.

Mr. Atkins responded that he has communicated to owners of units about an issue of debate in the community. He denies providing misleading information to anyone and he denied that he is in any way acting as an agent of the developer.

Mr. Atkins agrees that meetings of the owners should be called, and agrees with a proposed independent chair for the meetings but otherwise takes the position that it is unnecessary for the court to regulate the two owner meetings.

Key points in dispute
Both parties agree that meetings of the owners must be called to hold votes on whether the current boards should be removed. What is in dispute are primarily three procedural issues in relation to the meeting:
whether owners of units in the condominiums may use proxies to vote at the meeting;
whether the court should make an order regulating communication with and between owners of units in advance of the meetings; and
whether the court should make orders regulating the conduct of the meetings.

The judge denied the boards the court orders they were seeking.

Communication prior to the meeting
The boards sought orders limiting communication with and between owners in the developments leading up to the meeting. In particular, the applicants seek two orders controlling communications.  First, the boards sought an order that there be a mailing to owners which will enclose submissions from each side of the debate, which will be sent to unit owners with notice of the meetings. the boards' lawyer submitted in oral argument that the content of these submissions should be vetted by counsel for the parties.

The boards also sought an order that other than the one mailing, “there shall be no communication with or among unit owners, directly or indirectly, prior to the commencements of the meeting concerning the positions of the parties.”

The boards' requests were denied. The judge wrote:
"The Condominium Act, 1998 sets up a system of democratic governance for condominium corporations.  That democratic structure is reflected in the by-laws for these two condominium corporations.The democratic model means that members of the community (the owners) are entitled to vote to elect the boards of directors of the corporations, and to seek to remove them when they feel that the boards no longer represent the view of the majority of owners. A necessary companion to the right to vote is the right to discuss important issues that will be the subject of a vote.

The order sought by the applicants limiting communication to an official mail-out containing the positions of each side, and banning all other communication with and among unit owners prior to the meetings, is such a confined view of communication between the owners that it is not consistent with the democratic model in the Condominium Act, 1998. I decline to make an order regulating communication with and among owners of units leading up to the meeting."

"The applicants describe the respondent’s communications as “propaganda” and “misinformation”. However, it is equally clear to me that the respondent and the “dissident” owners who disagree with the special assessment do not see the respondent’s communications as propaganda, but rather see them as the other side of the debate on an issue of importance to the community, where clearly there are strong opposing views.

I observe that strongly held opposing views are not unusual in democratic governance, but rather, are often part of the process."
The judge wrote that if the boards are concerned about what they view as misinformation, they are free to communicate with the owners and seek to persuade them to support the their position.
Other matters
In the proposed draft order submitted by the boards, the directors also sought a term requiring that individuals attending the meeting provide government-issued photo identification in order to be allowed to vote.

The judge ruled:
"There is no evidence whatsoever before the court that there has been a problem of impersonation or fraudulent attendance at meetings by people who are not unit owners.  There is nothing in the record before me to support the need for this order. I decline to make it."

Mr. Atkins also requested two types of relief that he did not get; partially because he did not file an application.

First, he requested disclosure of the list of names of owners and mortgagees in the two developments.

Second, Mr. Atkins asked that owners who have not paid the special assessment, and thus are in arrears, be permitted to vote in the upcoming meeting.

Mr. Atkins was awarded $14,000.00 inclusive of disbursements and HST.

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