Providing for Attendance at Strata General Meetings by Electronic Means:

JUST BECAUSE YOU CAN, DOESN’T MEAN YOU SHOULD

Amendments to the Strata Property Act made at the end of November 2022 now permit all strata corporations in British Columbia to provide for attendance at annual and special general meetings by electronic means without passing a bylaw.

But just because strata corporations can, should they?

In this article, we explain the background behind the amendments to the Strata Property Act concerning general meetings and we consider the amendments.

The article includes a discussion on some of the practical considerations that are not addressed by the amendments to the Strata Property Act concerning general meetings.

We conclude the article with an overview of some considerations for councils when deciding whether to provide for attendance at a general meeting only by electronic means, only in person, or a hybrid of both.

I. Why were the legislative changes made?

At general meetings, owners meet to discuss and vote on decisions concerning strata business. Prior to the COVID-19 pandemic, a strata corporation could, if a bylaw permitted it to do so, provide for attendance at general meetings by telephone or “any other method.”

The only requirement for providing for attendance at an annual or special general meeting by telephone or other method was that the method must permit all persons participating in the meeting to communicate with each other during the meeting.

Pursuant to the BSSAA, the British Columbia Legislature decided to permit strata corporations to provide for attendance at general meetings by electronic means without passing a bylaw to do so.

The COVID-19 pandemic created an urgent need for strata corporations to be able to provide for attendance at general meetings by electronic means. Between restrictions to the size of gatherings and many other factors, holding inperson annual and special general meetings over the past 3 years was difficult and sometimes impossible.

To address this, the British Columbia Government implemented various temporary measures over the course of 2020 through 2022 that permitted strata corporations to provide for attendance at general meetings by electronic means without a bylaw.

At the end of November 2022, the British Columbia Legislature passed the Building and Strata Statutes Amendment Act (BSSAA) that amended the Strata Property Act. A number of amendments were made addressing different topics; the focus of this article concerns the amendments regarding general meetings.

Pursuant to the BSSAA, the British Columbia Legislature decided to permit strata corporations to provide for attendance at general meetings by electronic means without passing a bylaw to do so. Additional requirements were added to provide for attendance by electronic means, which we will consider in the next section.

The amendments concerning electronic attendance at general meetings were passed with a 4-month transition period. The provisions must be complied with as of March 24, 2023.

II. What amendments were made? The amendments made to the Strata Property Act at the end of

November 2022 regarding general meetings concern the following.

• Requirements to provide for attendance by electronic means

◊ notice requirements,

◊ communication among attendees, and

◊ identification of eligible voters.

• Voting cards and voting by secret ballot

Amendments concerning general meetings were not made to the Schedule of Standard Bylaws to the Strata Property Act (the “Standard Bylaws”). The Standard Bylaws apply by default as the bylaws for each strata corporation. A strata corporation can pass bylaws that amend the Standard Bylaws by filing bylaws with the Land Title Office. Those amendments can effectively add to the Standard Bylaws, amend them, or replace them.

Later in this article we discuss bylaw amendments that councils may wish to consider proposing to the owners to help ensure that electronic attendance, if provided for, at general meetings goes smoothly. Bylaws must be consistent with the Strata Property Act, but can add to it.

A. Requirements to Provide for Attendance by Electronic Means

The newly amended section 49 of the Strata Property Act requires the following for the strata corporation to provide for electronic attendance at a general meeting.

1. Notice Requirements

There are a number of requirements pursuant to section 45 of the Strata Property Act with respect to notices for all general meetings. Those requirements include, but are not limited to, a description of the matters that will be voted on at the meeting, the date, time, and if applicable, the place of the meeting. The notice must also be delivered to owners and other specific legal persons pursuant to one of the methods prescribed by the Strata Property Act, giving a proper notice period.

The recent amendments to section 49 of the Strata Property Act require the electronic means to enable the chair of the general meeting to identify whether a person attending by electronic means is an eligible voter.

Further to the recent amendments, there is an added requirement that if attendance by electronic means is being provided for at the general meeting, the instructions for attending the meeting by electronic means must be included in the notice.

2. Communication among Attendees

If a strata corporation provides for attendance to a general meeting by electronic means, the recent amendments to Strata Property Act require the electronic means to enable all persons attending the general meeting to communicate with each other. This requirement is consistent with the previous version of section 49 of the Strata Property Act.

3. Chair of the Meeting

The recent amendments to section 49 of the Strata Property Act require the electronic means to enable the chair of the general meeting to identify whether a person attending by electronic means is an eligible voter. The recent amendments do not take into account that the chair of the general meeting may not have been elected prior to when that identification occurs.

Generally, registration occurs prior to calling the meeting to order and electing a chair. Certifying proxies and corporate representatives, which is part of the registration process, is the first order of business pursuant to the Standard Bylaws.

Determining there is a quorum is the second order of business pursuant to the Standard Bylaws. Quorum is established by determining whether eligible votes holding one third of the strata corporation’s votes are present in person or by proxy, subject to the strata corporation’s bylaws.

Other provisions apply when there are fewer than 4 strata lots or fewer than 4 owners. To establish quorum, the person(s) conducting the registration will have had to identify whether a person attending by electronic means is an eligible voter.

Electing a person to chair the meeting, if necessary, is the third order of business pursuant to the Standard Bylaws.

B. Voting Cards and Voting by Secret Ballot

The recent amendments to the Strata Property Act have affected how voting happens at general meetings when attendance is provided by electronic means. If an eligible voter attends a general meeting by electronic means, the strata corporation is not required to issue a voting card to them. In addition, an eligible voter that attends a general meeting by electronic means is not entitled, nor required, to vote by secret ballot.

III. What should councils consider in light of the changes?

While the amendments to the Strata Property Act pursuant to the BSSAA set out a framework for strata corporations to provide for electronic attendance at a general meeting without the need for a bylaw, there are many practical considerations not addressed in the Strata Property Act.

Those practical considerations include, but are not limited to the following.

• Format of the general meeting

• Facilitating electronic attendance

• Process for proxy appointment forms

• Registration (identifying eligible voters, certifying proxies and corporate representatives)

• Voting procedures

• Privacy issues

A. Format of the General Meeting Councils will now need to choose a format for each general meeting. For example, will the general meeting be held only in person at a physical location or will council provide only for attendance by electronic means without a physical location? Or will the general meeting be a hybrid, whereby there is a physical location with some meeting attendees and some attending by electronic means?

B. Facilitating Electronic Attendance

If the strata corporation provides for attendance by electronic means, council should consider how it will facilitate that. Councils must ensure that the program, platform, or application used enables all persons attending the meeting to communicate with each other. Login instructions for the chosen program, platform, or application must be included in the notice of general meeting.

If some attendees are unwilling or unable to attend the meeting by the program, platform, or application chosen by council, it would be prudent to provide for the option to attend by telephone. Attending by telephone comes with its own set of unique considerations.

For example, if council uses a written chat function on the program, platform, or application to conduct a vote, can the function be used if a person attending by telephone cannot view the chat, i.e., communications from other attendees, or vote by the same method?

Identifying eligible voters and certifying proxies and corporate representatives may also be more challenging if those individuals attend by electronic means.

C. Process for Proxy Appointment Forms

No matter whether the general meeting is held solely by electronic means or it is a hybrid, eligible voters may still vote by proxy at an annual or special general meeting. Council should consider prior to the meeting whether it wants to implement a process for eligible voters to submit their proxy forms. For example, when trying to register attendees prior to the meeting, asking or requiring eligible voters to submit proxy forms may be more efficient than trying to read proxy forms held up to the camera by a proxy attending by electronic means.

D. Registration

Registration can be difficult enough at in-person general meetings. Councils should consider prior to the meeting how to conduct registration for individuals that attend general meetings by electronic means. For example, will all attendees have to wait in a waiting room until they are identified, then admitted to the meeting?

Alternatively, will registration occur once everyone has connected to the meeting? Especially when there is a large number of strata lots and the person facilitating registration does not know the attendees well, registration can take a long time and it will be important to have a system in place to make the registration process more efficient.

Identifying eligible voters and certifying proxies and corporate representatives may also be more challenging if those individuals attend by electronic means. Council should consider whether photo identification is going to be requested or required.

The definition of “owner” in the Strata Property Act encompasses more individuals than may initially come to mind. Our article “Whose Strata Lot Is It Anyway?” published in the Spring 2021 edition of The Scrivener [www.bcnotaryassociation. ca] provides a useful discussion on who is considered an owner pursuant to the Strata Property Act Conversely, in some instances an owner may not be an eligible voter. Section 53 of the Strata Property Act provides that the strata corporation, by bylaw, can prevent a vote for a strata lot from being exercised if the strata corporation is entitled to register a lien against the strata lot pursuant to section 116, except in the case of 80 per cent votes or unanimous votes.

E. Voting Procedures

The recent amendments to the Strata Property Act create an interesting situation for hybrid general meetings, as the Standard Bylaws would permit eligible voters attending in person to vote by secret ballot and have voter cards issued to them, but electronic attendees would not have the same rights. Councils should also consider how to respond to attendees when a secret ballot is requested for a vote in the case of hybrid general meetings or meetings held solely by electronic means.

Aside from the secret-ballot votes, councils must consider the logistics of how eligible voters can cast their votes and how the appropriate person(s) can count the votes cast.

Prior to the meeting, council may wish to set out voting procedures in the notice of meeting and/or the strata corporation’s bylaws so the eligible voters know what to expect.

Voting by electronic means can be complicated when a strata plan has both residential and nonresidential strata lots. Residential strata lots will have 1 vote, and nonresidential strata lots will have a varying number of votes, sometimes not involving a round number. That is typically due to the size of the nonresidential strata lots compared to residential strata lots.

If voting is conducted by using a “raise hand” function, the person(s) counting the votes must be cognizant that the number of votes may not equal the number of hands raised, either because 1 person holds several votes, or because 1 person is voting for a nonresidential strata lot.

F. Privacy Concerns

Council should be aware of privacy concerns at general meetings and consider how it will address them. Even at in-person-only general meetings, there is a privacy concern that someone may record the meeting without authorization to do so. That privacy concern is elevated when individuals attend general meetings by electronic means.

Council may wish to propose certain bylaws for the consideration of the owners at a general meeting that address practical considerations of electronic attendance at general meetings.

There are other privacy concerns associated with providing for attendance by electronic means at general meetings. For example, when attendees have their cameras off or are attending by telephone, it is difficult or impossible to tell who is in the room with them. Even with a camera on, people not entitled to attend the meeting may be present with the attendee, but be off screen.

Another concern may be when an attendee participates at the general meeting from a public space, such as the SkyTrain or a coffee shop; members of the public may be able to hear what is happening at the meeting.

G. Addressing Practical Concerns

Council may wish to propose certain bylaws for the consideration of the owners at a general meeting that address practical considerations of electronic attendance at general meetings. While a bylaw is not required for a strata corporation to actually provide for such attendance, having bylaws that address other practical considerations can help individuals know what to expect.

Bylaws can address requirements for the notice of a general meeting, the process for registering eligible voters, certifying proxies and corporate representatives, voting processes, and privacy concerns.

IV. How should councils decide whether to provide for attendance by electronic means to a general meeting?

The Strata Property Act is a onesize-fits-all statute. Along with the practical considerations discussed above, the unique nature of each community must be considered when councils decide how and when to provide for attendance at general meetings by electronic means.

Factors to be considered can include, but are not limited to

• the number of strata lots;

• the number of owners;

• the general use of the strata lots; and

• the number of owner-occupied strata lots.

For example, it will likely be easier for a strata corporation to provide for electronic attendance at a general meeting for a duplex with 2 owners, versus a complex with 2 apartment towers comprising a total of 400 strata lots.

Providing for electronic attendance at general meetings can be advantageous for communities such as resort complexes, where the primary residence of the owner may not be in the vicinity of the complex.

Similarly, if a large proportion of the strata lots in a complex is rented out, the owners of the strata lots may not live in the same city, province, or country as the location of the strata lot. It may be beneficial to provide for attendance at general meetings by electronic means in those situations, because owners are otherwise unlikely to attend except by proxy.

By now, most strata corporations have had experience with providing for attendance at general meetings by electronic means. Councils should carefully consider whether providing for such attendance is appropriate for the community. Perhaps a change of approach, such as to a hybrid general meeting, will be the answer.

V. Conclusion

Now that strata corporations in British Columbia can provide for attendance at annual and special general meetings by electronic means without passing a bylaw, councils should carefully consider whether to do so.

If councils are considering bylaw amendments that address holding general meetings by electronic means, they may wish to seek the assistance of a lawyer familiar with the law and the practicalities of holding such a meeting to draft the bylaw amendments.

Keep an eye out for future articles we may publish that address other recent amendments to the Strata Property Act

This article is for educational purposes only and does not constitute legal advice. ▲

Elaine T. McCormack is a lawyer, mediator, and arbitrator with Wilson McCormack Law Group.

Emily Sheard is an associate lawyer with Wilson McCormack Law Group.

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