"One of our board members has gone rogue – what can we do?" While this is thankfully not a frequent question that we receive, it can be an extremely challenging situation for boards, property management and legal counsel to address.
In the event that a member of a board has gone rogue, other board members understandably ask whether there is anything that the rest of the board can do to address the behaviour, such as removing the individual from the board. Except for specific circumstances, the board members themselves cannot remove another member from the board.
The one circumstance in which other board members alone can remove an individual board member is when the condominium corporation has a procedure to do so as a result of a violation of a Code of Ethics set out in its general operating by-law (or other stand-alone by-law).
This was the situation in the case of Gordon v. YRCC 818. YRCC 818 had passed a by-law that provided that if a member of the board violated the Corporation's Director's Code of Ethics on three or more occasions, that member of the board would be disqualified from serving on the board and deemed to have resigned.
The role of the other board members in removing a director for a breach of a Code of Ethics is to determine whether the Code has been breached and whether the board member in question is properly deemed to be disqualified from serving on the board. While the court in Gordon held that the board had not acted fairly in removing the board member in question, it ultimately upheld the board's determination that the member had been removed from the board.
In the event that a corporation does have a procedure to remove a board member for violations of a Code of Ethics, the corporation's legal counsel should be involved to ensure that the removal is done fairly and in accordance with the provisions of the by-law.
Absent a procedure to remove a board member for a violation of a Code of Ethics, the remaining board members do not have the power or authority to remove another board member. The only possible options to have that board member removed are:
- The board member no longer meets the qualifications to serve as a director set out in Section 29 of the Condominium Act, 1998 (the "Act") or the corporation's by-laws; or
- More than 50% of all of the owners vote to remove the member from the board, following the process set out in Sections 33 and 46 of the Act.
While these options may seem frustratingly limited to board members dealing with a rogue member, they do act as a safeguard to ensure that democratically elected board members are not removed from a board if they take positions in opposition to a majority of the board. The best way to ensure that a corporation can efficiently remove a rogue board member is to pass a by-law that provides for a Code of Ethics and a process to remove a board member that violates the Code.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.