Electronic Ballots and Proxies - the different ways to vote online and what condos should be aware of

The amendments to the Condominium Act (the Act) have material changes to the way condo owners cast their votes at owner meetings. First, there has been a wholesale change in the form of proxy that the Government of Ontario now requires that condos use (also known as the “prescribed form”). Second, the amendments now permit for the use of electronic balloting (provided that a condo corporation first passes a bylaw adopting its use).

In this post, we’ll discuss the differences between electronic proxies and electronic ballots, some of the concerns that condos need to be aware of regarding electronic balloting, and how to start using advance balloting in your owner meetings.

First, what's a proxy?

A proxy vote is a ballot cast by a person on behalf of a condo owner who is unable to attend a meeting. With a proxy, an owner appoints their proxy representative to vote in accordance with the instructions set out in the proxy form, or if the owner has not provided specific instructions, the proxyholder may vote in their discretion. The proxyholder could be anyone the owner chooses - a family member, the meeting chairperson, or the President of the Corporation, just to name a few.

This is different from ballot voting, whereby an owner directly casts their vote on meeting matters and, at least traditionally speaking, such ballot is cast at the meeting itself (and hence, there is no need to appoint a proxy).

What was all the hubub about proxies from before?

Prior to the advent of electronic proxies, "proxy forms" were submitted to the Corporation in paper format. There were many reported incidents of unscrupulous owners showing up to a meeting with a big stack of proxies and ultimately the power to elect any candidate for director that they wished. Because it was difficult to verify the legitimacy of paper proxies, these unscrupulous owners could abuse and defraud the system for their own personal gain. The proxies could very well have been legitimate, but they could have been collected through coercion or intimidation.

GetQuorum’s electronic proxy system has eliminated these issues, our clients can rest easy because our guided tool makes completing proxies easy and accessible for owners. And, proxy fraud is never an issue because our system has security measures in place to prevent abuse (eg. unique access codes, IP address tracking and numerous encryption methods).

So what's the difference between advance electronic ballots and electronic proxies?

Not much.

GetQuorum provides both advance electronic balloting and electronic proxies. Both are ways for owners to conveniently and securely cast their votes online, and both follow the same basic workflow. However, there are some key differences between the two methods of voting:

1. Proxies allow an owner to defer the vote to the proxy holder
2. Electronic balloting first requires the passing of bylaws, electronic proxies do not and can already be used
3. Votes by proxy can be revoked or changed by the owner at any time
4. Proxies are valid for a meeting's adjournments

Proxies allow an owner to defer the vote to the proxy holder

The recent changes to Ontario's prescribed proxy form in May 2018 now allow owners to defer their voting instructions to the discretion of the proxy holder. Read our blog post about the new changes and how we handle deferral of votes. It turns out that a significant number of owners actually prefer to have their proxy holders vote on meeting items in their discretion, and we've seen an increase in voter participation because of this change.

Why?

Prior to the May 2018 proxy changes, owners that weren't sure how to vote on a particular matter would either choose to abstain from the vote or not participate at all. These choices would end up being detrimental to the condo corporation, especially in cases where the condo corporation needed to pass a bylaw. But the new prescribed form of proxy added a new option: "I give my proxy authority to make the decision". This new choice provides owners with additional flexibility in circumstances where they are unsure how to vote as they can now defer this choice to someone whose judgement they trust.

Electronic balloting requires a special bylaw

Under the amended Act, a condo corporation can now permit “owners to cast a vote by “telephonic and electronic means” (i.e. electronic ballots) if it first passes a bylaw adopting its use. This “electronic voting bylaw" must receive a simple majority of votes in order to pass (assuming quorum for the meeting is first reached). Once the bylaw is passed, electronic balloting can be used for future meetings.

Votes by proxy can be revoked or changed by the owner at any time

Although electronic proxies and advance electronic ballots allow an owner to vote ahead of the meeting, the nature of proxy voting is such that no vote is cast until the meeting actually commences. So before a meeting takes place, an owner can choose to revoke their proxy and/or submit a new one. Whereas with an advance ballot, those votes may now be locked and unchangeable.

Consider the following scenario: An owner is unavailable to attend the meeting so they cast an advance ballot ahead of time. On the day of the meeting they suddenly find themselves available to attend, so they do. If the owner voted by electronic proxy, they would be able to revoke the proxy and vote in person. If they voted by ballot, that vote may now be locked in. This inflexibility becomes more of an issue when an owner learns something new after submitting their ballot that would make them want to change their vote. Proxies provide the owner with more flexibility in this regard.

Proxies are valid for a meeting's adjournments

The prescribed form of proxy specifies that the form is valid for a meeting and all it's adjournments. So if a meeting needs to be postponed, rescheduled, or adjourned, then all proxies collected for that meeting can still be used when it's reconvened. This can save considerable time and effort for the management team for the new meeting.

So does that mean that owners can only cast their vote by proxy or ballot?

No, it doesn’t.

The Condo Act requires that proxies must still be a valid method for an owner to cast their vote. Proxies and ballots can and should be used together.

GetQuorum allows the owner to decide if they would like to use electronic proxies or advance electronic ballots.

Our secure platform makes it easy for owners to cast their vote so that they can take part in the decision-making processes for their condo. We just make it super easy for owners to complete their electronic proxy or ballot.

And don’t let the passing of the mini bylaw get you down. Historically speaking, clients that use the GetQuorum platform have achieved quorum on the first try. We can help you pass the voting bylaw using our electronic proxy system. And once we help you pass your bylaw, GetQuorum’s balloting system is ready for your future meetings. Our electronic balloting system has already been used successfully by our non-condo clients.

Are there any issues to consider when it comes to using electronic ballots?

Yes, the Act has not set out any rules for voting by "electronic or telephonic means". This means it's up to the condo corporation to set the rules in their bylaws. However, condos should be mindful that their electronic voting methods not impact the voting rights of owners currently recognized under the Act.

Consider another scenario: an owner votes by advance electronic ballot weeks prior to their meeting. The same owner then subsequently decides that he/she wants to appoint a proxy holder to attend and vote at the meeting on their behalf. We think this owner should be able to submit a proxy form that overrides their initial ballot. Similarly, if the same owner now wishes to attend and vote at the meeting, we think this owner’s vote should replace the initial ballot that was cast weeks prior.

Proxies provide the flexibility of an owner to change their mind right up until the last minute, it only makes sense that electronic balloting afford the same rights.

In the absence of any Ministry guidance on this matter, however, condo corporations should confer with their legal counsel to ensure that the rules for balloting are consistent with the owners current rights and abide by what is set out in the Act.

Are there situations where electronic proxies or ballots are preferable?

Advance electronic balloting is best used ...

1. For simple meetings with one election and plenty of candidates; and

2. When an election involves heated politics (eg. removal of directors) - In heated political situations, anonymity is key and balloting can be done anonymously.

Electronic proxies are better in almost every other situation because of the flexibility it provides the owner and corporation. The following are two situations where they are especially useful in:

1. When a meeting involves a bylaw vote - Many condo corporations have difficulty passing bylaws which is why proxies might be the preferred route. From our experience, we have seen that when given a choice, unsure owners defer their vote to their proxy holder. Additionally, some corporations need to hold multiple meetings before they collect enough votes to pass the bylaw - proxies are valid for a meeting's adjournments.

2. When no candidates have notified the Corporation of their intent to run prior to the meeting - Owners can defer their votes to the proxy holder such that, if someone nominates themselves at the owners' meeting, the proxy holder can make an informed decision at the time and cast the votes accordingly.

Condo corporations should confer with their lawyer when it comes to strategizing on how to best use electronic proxies and/or ballots. Feel free to drop us a line if you want to discuss an agenda item that your owners have to vote on.

Do you want to chat some more about the differences between electronic proxies and ballots? Want to see a demo of our ballot and voting systems in action? Check our our demos page or reach out to us for a chat.

Splash photo by Arnaud Jaegers on Unsplash