Let The People Vote: The Court Provides Guidance for a Requisition Meeting

I recently represented a group of unit owners who were required to take their condominium corporation to Court over their Board of Director’s refusal to grant them a unit owner meeting to vote on a proposed project in their lobby. In November 2013, the Corporation’s Board of Directors issued a notice pursuant to Section 97 of the Condominium Act, 1998 (the “Act”) regarding the proposed change. Within two weeks, 63 unit owners (representing over 30% of the units) executed a requisition and served it on the condominium corporation.

The condominium corporation took exception with respect to the manner and form of the requisition for the following reasons;

1. Of the 63 requisitions only 19 owners signed their names in cursive writing. The other 44 owners signed in print form;
2. The Corporation was unsure how many requisitions were served in accordance with its governing documents (notwithstanding that the condominium corporation’s Board of Directors confirmed that it had 63 requisitions in its possession) and;
3. That the requisition submitted by the unit owners consisted of 63 independent requisitions, signed by a single unit owner and not one document.

Despite the repeated requests, first from the unit owners and thereafter from our office, the Board of Directors subsequently refused to grant the 63 unit owners a meeting to vote on the proposed change. Ultimately, the matter had to proceed to Court whereby the unit owners were successful in obtaining a Court Order requiring the condominium corporation to hold a meeting within 35 days of the Judgment.

The Court determined that it had the power to remedy the condominium corporation’s failure to perform a duty imposed by section 46 of the Act. In dismissing the condominium corporation’s position, the Court re-affirmed that the Act should be given a large, fair and liberal interpretation to best promote its objectives. The Court found that there was no requirement in the Act referring that a requisition be a single document. For those of us actually practicing in this area of law, we know that requisitions are rarely, if ever, contained on a single page.

Following existing legal precedent, which stated that a signature merely has to be a “distinctive mark”, the Court also dismissed the condominium corporation’s position in discounting the 44 signatures which were “printed” versus being signed in cursive.

Ultimately, the Court recognized the fact that the condominium corporation’s position and attempts to thwart an otherwise valid requisition of unit owners was not justified. The requirements set out in Section 46 of the Act were met.

The Court recognized that even if there was a slight issue with respect to form, it should not trump substance, as depriving unit owners a chance to vote with respect to a proposed change in assets was key to promoting democracy and for unit owners directly governing the affairs of the condominium corporation. The requisite meeting is a self-help remedy under the Act intended to avoid the need for Court. Unit owners shall not have to resort to Court to exercise this right.

The Court also awarded the unit owners costs.

I have always cautioned condominium corporations for taking a hard stance with respect to the validity of a requisition for a unit owner meeting. A question that I ask a Board when faced with a situation like this is, if this matter ever went to Court, would a Judge be quick to criticize the condominium corporation for allowing the unit owners to get together and hold a vote? Promoting democracy within the community enhances transparency and encourages communication. If the matter ever proceeds to Court, a Judge would be hesitant to fault the condominium corporation for letting its unit owners have their voice.

The case referred to this article is Hogan et al vs. Metropolitan Condominium Corporation No. 595. 

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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