October 22, 2018 at 2:55 pm #2326
In the Condominium Property Act, Section 28.1(2) says, “A corporation may by ordinary resolution remove a member of the board before the expiration of the member’s term of office …”
Does this mean a board can remove one of its members or does it mean a general meeting of the owners must be called, or does it mean that either the board or the owners can do this?
Originally posted by Donna G
October 22, 2018 at 2:55 pm #2327
The board is the board and the corporation is the collection of owners that the board represents, so they get to decide. The reason for this is that it was an election by the corporation/owners that put the current members on the board. If a board tried to remove a sitting member that would be seen as overstepping the democratic will of the corporation.
That said, board membership has certain requirements that, if not met, make an individual ineligible for office. This includes mainly bankruptcy, but also a few other issues like having been declared incompetent. Bylaws may also have a limit on the number of consecutive absences without notice from board meetings. In such cases it is probably best to explain the requirement to the person and suggest they resign. Then there would then be no need to share personal information about the individual with the owners.
If the issue is a dysfunctional board resulting from personality conflicts, it might be less contentious to try to use whatever dispute resolution there might be in the act or the bylaws. If none, then find one.
Regardless, should the board opt for the general resolution approach, care must be taken with how the facts of the case are presented, both because of privacy, and also to avoid the perception of a personal vendetta against the person. Even then, you should be aware that bad feelings may result on the part of the owners (I have seen this in the context of a non-condo organization), and possible legal challenges of the result. It might be helpful to get legal advice on this.
Alastair D on May 27 2018 at 01:24 PM
October 22, 2018 at 2:55 pm #2328
As I understand it, the Owners elect the Board members, and only the Owners can remove a Board member.There would have to be sufficient cause, such as those mentioned in the By-Laws and the Act..
Gilda V on May 27 2018 at 05:07 PM
October 22, 2018 at 2:55 pm #2329
I’m not a lawyer and may have this wrong, but…
…the key item in your quote is “ordinary resolution”. I believe it is defined in the Condo Act, as well as a special resolution. If not, it’s defined in the Business Corporations Act. An ordinary resolution can be passed two ways as I recall:
1. A simple majority of unit factors voted at a general meeting of the owners (one with quorum – 25% of unit factors present or by proxy?), or
2. A 50%+1 majority of unit factors and 50%+1 majority of owners using a signed ballot or similar written vote.
The second method means an owners’ meeting does not need to be called.
This approach – a vote of the owners – doesn’t require cause, but would probably require an explanation of why the vote is being called (unless a majority of owners are well versed in Board politics). Your Bylaws may offer another means of removal for cause; this is one method that can force someone out without cause. Hopefully a resignation is offered once it is clear the Board will bring this issue to the attention of all owners…including financial institutions holding mortgages.
Arylnn P on May 27 2018 at 08:38 PM
October 22, 2018 at 2:55 pm #2330
There is a specific way process must occur, and this is frequently done incorrectly.
The Act allows a corporation (owners) to remove a board member(s) by ordinary resolution (s.28.1(2)). They don’t need to provide reasons for doing this. An ordinary resolution is a specific proposal that owners vote one with a “yes” or “no”, and passes by majority vote (if at a meeting with quorum), or in writing (a majority of all owners/unit factors.)
If done in writing, a majority of owners/unit factors must specifically approve a motion to replace board members with specific persons (ie., to replace A, B and C with D, E and F.). Once signed the resolution passes.
Another way this can happen is for owners to properly call a meeting (a special or extraordinary meeting). First, sufficient owners must request the meeting. The Act (s.30.1(2)) allow owners to request a special general meeting – at least 15% of the unit factors must request this. However, as the Board is then required to provide notice of the meeting AND proposed wording for the resolution (s.30.1(5)), the original request or “petition” from the owners must contain the language for the resolution. ie., A resolution to remove Board members A, B, & C and replace them with D, E, and F.
Too often Owners mistakenly state they wish to remove the Board, have a meeting called and then an election will occur, this is incorrect as there is no election. This has to happen by resolution. Therefore, in the original request or petition the board members proposed to be removed must be identified, the proposed replacement board members identified, at least 15% unit factors in approval for the matter, the Board then calls the special meeting, the motion is put to the meeting (assuming quorum is present), the motion is discussed, and the proposed resolution is put to a vote (yes or no). If the resolution fails, the board stays, if is passes the new board members are in place for the remainder of the replaced board members term.
Typically, this kind of motion cannot happen at an AGM or a special meeting without notice of the motion be given to owners or placed on the agenda. This is because this type of motion is “special business” or business that the owners require notice of.
TODD S on May 28 2018 at 08:04 AM
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