Canada: The Importance Of Notice

Has your condominium corporation convened an Annual General Meeting (AGM) in 2020? If you're not a member of your Board of Directors and you answered ‘no' to that question, you may want to find out for sure after reading this.

I recently attended my own AGM. It's a small condominium property with fewer than 40 units, and a physical meeting was possible without violating the current public health restrictions. In fact, besides myself, members of the Board of Directors and representatives of the property management company, there were only four (4) owners present in person.

However, I almost missed it as I did not receive any notice that an AGM had been convened. The Condominium Property Act requires condo corporations in Alberta to provide at least fourteen (14) days written notice of an AGM to all unit owners and certain mortgagees. Instead, I received a text message from one of my neighbours (who is also a Board member) the night before the meeting was scheduled, asking if I was planning to attend. Since the beginning of this year, the Board has apparently been sending all notices to unit owners by email and/or using Facebook for its communications.

The Board, on the advice of the property manager, relied on amendments to the Condominium Property Act and regulations which came into force on January 1, 2020. The relevant portion of the section reads as follows:

This contemplates unit owners providing electronic addresses “specifically” for the purpose of receiving notices and information. In other words, condo corporations are not authorized to send electronic notices to unit owners in place of personal service or regular mail until this precondition is satisfied. The provision is consent-based, and requires unit owners to opt in to receive electronic notices.

Our property manager attempted to rely on a consent I gave in 2014. Like most people, I have several email addresses: one address is primarily used for business communications, another is for personal communications, and at least one more that I rarely, if ever check, is now just a repository for spam and junk mail. This last email address is the one I had provided to the manager six years ago.

The consent I gave in 2014 was for the purpose of receiving email communications from the property manager in my capacity as a Board member at that time. Ostensibly, I was asked to provide this consent to the manager in order for it to comply with Canada's new Anti-Spam Legislation (CASL), which came into force July 1, 2014. Like section 71.1, CASL is also opt-in legislation, under which organizations and businesses are not permitted to send commercial electronic messages to individuals without obtaining prior consent.

In 2014, there was no legislative authority for condominiums to send electronic notices to unit owners. Therefore, even if consent was provided for the particular purpose of receiving notices as a unit owner (and not some other purpose) in 2014, it may be unreasonable for a condo corporation to rely on it in 2020.

During the meeting, I learned that there were at least a few other unit owners in a similar position as myself. I am told that the Board is investigating to determine how many were affected by its decision to send email AGM notices, and this will inform its next steps insofar as whether any business conducted at the AGM may need to be validated at a subsequent meeting.

Ordinarily, a failure to give proper notice of a general meeting does not invalidate anything done at that meeting. This is another amendment to the Condominium Property Act that came into force in 2018. But in order for a corporation to avail itself of this provision, it must demonstrate that it made a reasonable attempt to give proper notice.

In my view, where the original attempt to provide notice did not itself comply with the legislation, it cannot be called reasonable and may not be saved by this section of the Condominium Property Act. And even though property management may have advised the corporation that email notice without prior consent by unit owners was sufficient, shifting the blame to the manager does not validate improper notice. All this highlights the importance of ensuring that condo corporations comply with their statutory obligations, especially when it comes to satisfying formal notice requirements.

Much of condominium law in Alberta, and arguably in most jurisdictions, is consumer protection-based legislation. It is designed to protect unit owners and prospective purchasers from loss and abuse. The Condominium Property Act has very specific requirements designed to ensure that all unit owners receive full, timely notice of general meetings at which important decisions are put forward for their consideration and voting.

Receiving proper and adequate notice of meetings is therefore critical to protect the interests of unit owners. In many cases, condominium units are probably the owners' most valuable assets. Regardless of their individual importance, though, all unit owners have a fundamental right to attend meetings and weigh in on the business of the corporation. Notice requirements exist to protect this right.

Given my experience, I urge unit owners who have not received notice of an AGM yet this year to reach out to their elected Boards and/or property managers and confirm that an AGM has not already taken place without proper notice having been given. For those condominiums that are already making use of electronic notices by way of email, Facebook, Geniepad or some other format, ensure that unit owners have opted in for these modes of communication.

A good practice is to confirm that unit owners have provided both their consent and an electronic address for this purpose. Just because an owner is a member of the corporation's group on Facebook does not mean they have consented to all notices being received electronically.

Now that corporations have the appropriate legislative authority, there is nothing wrong with providing notices to owners by email, provided they have elected to receive their notices in this manner, and are expecting it. Otherwise, the corporation could find itself having to validate all votes and actions taken since. If in doubt about whether or not an electronic notice is permitted, obtain legal advice.

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.