Proxies
This is a string of proxy comments and responses to others that I've made on discussion groups.
NAME What you are saying contradicts the SPA. The strata is required by s.35 to prepare records and retain copies of all correspondence sent or received by the strata or council, including proxies that it receives to certify. An owner shouldn't be able to use a proxy to avoid being identified or heard at a meeting as required by s.49 either.
NAME You might be right that the proxy holder does not legally need to vote as directed on the proxy. Or at least the strata has no duty to police that for the owner.
You're unquestionably right about a proxy not being an agreement between the giver and strata - but how does that have anything to do with the strata's s.35 duty to prepare records and retain copies?
What makes you think that duty is limited to agreements with the strata?
If you think that you know what is "legally" not a strata record or correspondence after listening to a PM, strata lawyer, your own notions, or anybody else's, or after seeing a story on CanLii or in a CHOA journal, then I think you have a lot to learn about the law.
It's very true that a little bit of knowledge is a dangerous thing.
Lawyers make their living arguing over interpretations and manufacturing or perpetuating uncertainty, and courts are all about making orders and writing narratives that support one argument over another despite plain language statute. That's why the Supreme Court of Canada has the power to take corrective action over the whiplash decisions so characteristic of BC's justice system, and why the CRT in particular has zero precedent value.
I think that delivery of a proxy for certification to cast votes is just as much a record of the strata as signing in for your voting card, and it is just as much correspondence as delivery of an invoice for payment, or any other communication that is sent or received by the strata. Once it is received by the strata the author, owner, or method of delivery makes no difference to the strata's duty to retain a copy for the record.
I really don't get it when you say, "THIS is how we defeat proxy farming. The law had the answer all along." What do you mean by those two statements? If you have the answer to how we defeat proxy farming I'd love to hear it.
NAME The delivery method makes no difference. Whether the proxy is received by hand or email, the strata still must receive it before it can be certified, and once received it has a duty to retain a copy for the record.
NAME That's right, when the strata receives the proxy form for certification it hands the original back to the proxy holder and retains a copy pursuant to s.35. The duty is the same whether the meeting is in person or electronic. It makes no difference who makes the copy, or whether it is taken by photograph, photocopier, email, or whatever, just so long as the strata retains a copy for the record.
Statutory access pursuant to s.36 permits the rest of the owners to actually see who was participating in the meeting by proxy, the same as if those owners who stayed home watching TV had got up off the couch and participated in person.
I think it's bad enough that a minority solicit enough proxies to thwart the democratic process, without allowing them to nefariously replace statutory transparency with non-compliant secrecy as well.
NAME With all due respect to CHOA, I think it's an enormous betrayal of the trust of condominium home owners to claim that "only the chairperson (eg the PM) has the authority to certify a proxy." I think nothing could be more dangerous to stratas, or further from the truth. I agree with NAME when she says, "I don't think property managers should be allowed to certify the proxies, they have too much invested in what happens at an AGM. Their fees are approved in the budget, and who is elected is big time important to them. They are not allowed to hold proxies because they are in a conflict of interest if they do. So it doesn't make sense if they are allowed to certify the proxies! That should be an even greater conflict of interest!"
NAME No, you're right, nothing requires the chair to make copies as the strata receives proxies for certification. That's usually the strata secretary's responsibility. Section 35 of the SPA requires the strata to retain copies for the record, but it doesn't specify whose job it is or how it should be done.
NAME I think the government created the problem by allowing owners of strata property to vote by proxy, so the most obvious way to control it is to amend the SPA to eliminate that sabotage and make voting in stratas the same as voting at other levels of government.
NAME I repeat, the delivery method makes no difference. Section 35 requires that "the strata corporation must retain copies of all correspondence sent or received by the strata corporation and council." It is impossible to certify a proxy unless it has first been received.
NAME Nobody can get copies prior to the proxies being received. It is not necessary to make a s.36 request 2 weeks before the AGM to receive copies - it is unlawful to destroy strata records contrary to the governing legislation. The same s.36 rules apply to proxy access as to any other s.35 record or correspondence received by the strata.
NAME Yes, an owner is entitled to s.36 copies of correspondence sent or received by the strata including enclosures or attachments, whether delivered by hand, email, snail mail, or whatever.
There is no requirement that the exact nature of correspondence be specifically listed in s.35 as proxy, invoice, estimate, letter, cover sheet, etc.
Full access by tenants-in-common pursuant to the SPA is consistent with property rights and ownership of land/air space, not to be confused or conflated with limited liability shareholders holding investments with restricted rights.
Contrary to the best interests of the strata, PMs who support nondisclosure will often argue against retaining and providing copies, and act to avoid sharing information with the owners who actually own the property and pay the bills.
NAME You make a good point - a no soliciting bylaw would be unenforceable under s.121 to the extent that it contravenes gathering signatures for a s.43 petition - however, a bylaw that prohibits soliciting would be perfectly valid to control proxy farming, and to that extent it would not contravene anything in the SPA.
NAME Okay, to better address proxy farming concerns, that section of the bylaw could be amended as follows:
(1) Pursuant to the need to avoid putting the decision-making authority for the entire strata corporation in the hands of a minority, owners must not solicit proxies or appoint proxies that are solicited or gratuitous.
(2) Pursuant to the duty to act prudently with a view to the best interests of all owners, the strata must not
a. allow a non-member who provides a paid service to the strata corporation to act as a proxy,
b. permit an owner to act as proxy in relation to more than one other strata lot that they don't own, or
c. certify more than one proxy per person attending a meeting on behalf of a strata lot they don't own.
Does that proposal sound any more compliant?
NAME Yes, it might be arguable whether restricting proxies by refusing to certify them is enforceable - it would depend on what's reasonable. However, fining any owner who solicits them in contravention of a bylaw seems totally enforceable to me. A bylaw like that does not contravene anything in the SPA, and council has a s.26 duty to enforce valid bylaws.
I think owner occupants who give their vote to someone else are rarely, if ever, like minded with those who are soliciting proxies. Quite the opposite.
One owner cares too little, and the other owner cares too much - or at least more than their fair share or entitlement to one vote per unit owned. This is what skews democracy contrary to the best interests of stratas. I think it is also why proxy voting is not permitted in Federal, Provincial, or Municipal elections, where getting out to vote can be far more inconvenient that when everyone lives together right in the same neighbourhood.
NAME Stacking AGMs with proxies from people who aren't interested enough to attend a meeting once a year, right in their own neighbourhood, is offensive to those who actually care enough to attend. IMHO.
NAME In most legislation the prescribed forms are found at the end of the Regulation. In regard to proxies Form A found in the Strata Property Regulation is not a prescribed form, it is an optional form.
A proxy assignment is not a contract. The strata is not a party to it. It is an assignment, like a power of attorney.
Just like a bank, the strata has a duty to verify its authenticity, to protect against fraudulent scams.
Unlike a bank, the strata has a further duty to its members of due diligence not to transfer power into the hands of a minority to the detriment of attending members and the strata as a whole.
In a strata, all decisions must be made by not less than a majority, each decision must be recorded in s.35 minutes, and records must be provided pursuant to s.36.
Scrutinizing historical minutes provides confirmation of direct, personal observations of the strata's statutory powers and duties being persistently usurped by property managers, who make pronouncements with no investment in the property, and zero responsibility under the SPA.
Owners watch stupefied as the power of the secretary, treasurer, and chair all fly into a single non-owner's hand, contrary to the best interests of the strata.
The strata has control of how to manage, and administer the strata corporation, including how it wishes to certify proxies. This proxy bylaw tries to ensure that the strata's duty to act prudently with due diligence and a view to the best interests of the strata can be relied upon by owners.
NAME An owner can write whatever they want on a proxy, but that is between them and the person they trust with their proxy, it has nothing to do with the strata.
Once an owner gives someone else their proxy the person holding the proxy can vote any way they want, on whatever they want. The strata has no duty to police that.
The strata does however have a duty to guard against fraud. It has no duty to accept any proxy without proof of identity or when the evidence suggests that, on a balance of probabilities, the owner did not give up their voting rights, voluntarily, or without trickery.
NAME I don't know what you might be missing.
People assume that when they assign their vote to a proxy that the person can be trusted to follow their instructions. If they give their proxy to someone who betrays their trust the strata isn't responsible to police that.
There are also distinctions between "permissive" wording, which allows voting by proxy, "mandatory" wording, which requires the signature of the person, and "silence" on what the strata can require to certify proxies.
Council's duty to enforce bylaws and act prudently with a view to the best interests of the strata is not permissive. It is mandatory, and mandatory prevails over permissive.
Owners are free to assign their vote, and a proxy can do anything the owner can do, but neither the owner nor their proxy is free to contravene strata bylaws.
If the owners adopt a bylaw that says the strata must not certify as an eligible voter more than one proxy for each person who is acting on behalf of a resident, that's consistent with the SPA, and owners must govern themselves accordingly in my opinion.
NAME I'm not denying that everybody has the right to give their proxy to the same person. What I'm saying is the strata does not have to accept that. I'd be surprised if a court allowed a bunch of residents who aren't interested enough to bother to meet once a year to oust the majority's right to administer the strata with bylaws that act to protect the democratic interests of the strata. Yes, it may be a narrow focus, but it is due to a broad concern.
NAME Thank you for your kind words and your efforts to keep the lines of communication constructive.
As I told NAME earlier in this thread, two courts could interpret the proxy bylaw in opposite ways. She is arguing one side, and I am arguing the other side.
Anybody who has followed cases on CanLii has probably noticed that the argument that an adjudicator chooses to accept is anybody's guess, since the law is supposed to be administered by judges with critical thinking skills, not mindless computers.
As so many know, I don't have a lot of respect for many court decisions, and I'm strongly opposed to the way courts all too often use legal fiction to defer to stratas at the expense of justice and the law. In contrast, the supposed purpose of legal fiction is to provide a remedial tool when the letter of the law is being manipulated in a way that was never intended and is contrary to justice or the public interest.
My position is that in the whole of the circumstances the bylaw is legitimate. NAME says it is not. Time will tell.
In the meantime, I will do everything in my power to protect the democratic rights of owners who care enough to attend AGMs from finding their time and effort wasted by a minority holding numerous proxies. Hopefully owners who vote on the bylaw will agree.
Otherwise, those who mind their own business in good faith will continue being overwhelmed by a fist full of proxies in the hands of a sophisticated minority who in most, if not all, cases are furthering their own agenda in an organized way, at the expense of other less political members of the strata.
NAME It sounds like you're referring to the members, who cared enough to attend your AGM to vote, as the "audience" because that is pretty much what the proxies reduced them to. Such a shame!
I think you should send a copy of your message to Kevin Zakreski who wrote the BC Law Institute article on proxies, which is posted earlier in this thread, and cc the usual suspects. Mr. Zakreski's email address is: kzakreski@bcli.org.
NAME Are you one of the people who holds multiple proxies? If so, what is stopping members from voting on their own behalf the same as yourself? Do they live out of town? Are they disabled? Or are they just not interested?
NAME Yes, but I wouldn't throw the baby out with the bath water. It doesn't have to be all or nothing.
In a personal emergency a proxy can be just as valuable as an electronic meeting is in a state of emergency such as a pandemic, but common sense and reasonable restrictions are required to protect against abuse.
I understand and appreciate the different viewpoints on the extent to which an owner's choice can prevail over the competing powers and duties of the strata.
The arguments are thought provoking, and I think they shed a fairly broad light on several issues at once. Hopefully, the conversation is moving toward putting a lot of fundamental interests in better perspective.
NAME What was stopping your neighbours from voting on their own behalf the same as yourself? Were they out of town? Were they disabled? Or were they just not interested enough to spend their valuable time going to a meeting for their property which could very well be their life's savings?
Did the property manager tell you that the AGM would be a "nightmare" and that anyone who gave you their proxy would be doing everyone a favour to help "speed" it up? Did you tell that to anyone you solicited?
I'm not surprised that the property manager recruited you to go out and collect proxies, and I can understand the whole range of reasons for that.
Throughout nearly 40 years of observation the prevailing common denominator in most, if not all, cases is the ulterior motive to exploit any opportunity to seize votes from those not interested enough to care.
This is how control of so many stratas falls into the hands of a minority acting in their own interests at the expense of others.
NAME Thank you. You nailed it. It's not all or nothing. It is indeed a balance between rights and privileges.
NAME I just took another stab at the proxy bylaw as follows:
(1) Pursuant to the need to avoid putting the decision-making authority for the entire strata corporation in the hands of a minority,
a. council must not issue unsolicited proxy forms to resident owners, and
b. owners must not solicit any proxies from others.
(2) Pursuant to council's duty to act prudently with a view to the best interests of all owners, the strata must not
a. allow a non-member who provides a paid service to the strata corporation to act as a proxy,
b. certify a proxy without proof of ownership of the person assigning the proxy and proof of identity and signatures with government issued photo ID of both the person assigning the proxy and the person acting as proxy.
(3) When an assignment of proxy is received by the strata for certification a copy must be retained for the strata records before the original is returned to the proxy.
(4) Documents appointing a proxy must be inspected by at least one scrutineer
(5) If an eligible voter who appointed a proxy attends the meeting at which the proxy is to act, certification of the proxy is suspended while the eligible voter is in attendance.
(6) Any proxy assignments received by the strata, whether delivered by email, fax, post, courier, or hand, is considered a s.35 correspondence record whether certified or not.
(7) Subject to this bylaw, the strata will treat any certified proxy, as standing in the place of the eligible voter without restriction, despite any limits shown on the assignment document.
(8) The strata will not certify any proxy assignment that is associated in any way with a contravention of any part of this bylaw.
(9) A copy of this bylaw must be included with the notice for any general meeting.
NAME Yes I definitely did. I'd welcome any further suggestions from you also. I truly believe that an ounce of prevention is worth a pound of cure, and many heads are better than one. We don't have to agree to contribute value.
NAME Yes please, and thank you so much! I would love that! I did PM you. I trust that the strata will take these to a lawyer as it sees fit. I donate my time quite freely, but I can't afford to donate money as well.
NAME Thank you for sharing this. Our strata is all owner occupied, so if an eligible voter cares enough to bother, they can usually attend the meeting. If they can't walk across the street, they can ask for a ride.
My question is, why would the Strata Property Act have to be amended to place limits on the number of proxy appointments that a person may hold for a general meeting, when s.31 already gives the strata council the authority to do whatever's required in the best interests of the strata, and s.119 authorizes the bylaws to govern the administration of the strata corporation?
I do agree that an amendment to the SPA would be required to take it further and actually restrict proxies to 5% of the units, which in our strata would be a total of 3 proxies, period. I just can't wrap my head around the logistics of that, other than on a first come first served race to the ballot box, which could let in 3 farmed proxies and leave out the elderly owner with a disability, or the one that's vacationing out of town.
As stated in the article, "in theory at least, strata corporations in British Columbia are vulnerable." In theory... No, in fact. What they are vulnerable to in this regard is jumping to erroneous or manipulative conclusions, or fear and confusion that all too often clouds clear thinking.
Not to say that some owners can't trust someone else to vote on their behalf when necessary, but NECESSARY is the key word, not trust, convenience, or apathy.
The s.56 appointment of a proxy is discretionary, so nothing about this bylaw contravenes the SPA. The power and responsibility to comply with the bylaws falls to the proxy giver and holder, not the strata.
The strata council's duty is to enforce the bylaws, and act with due diligence with a view to the best interests of the strata, and the proposed bylaw is intended to give effect to that.
NAME Corrected, with thanks! (on my original - I can't edit the posted file.)
NAME No, the strata is not required to accept proxies without verification of identities, signatures, and ownership. In fact, failure to exercise due diligence in decisions that affect the biggest asset in most people's lives is irresponsible, if not nefarious.
NAME There is nothing to say that an owner is properly represented by a proxy. A proxy can do whatever they want - nobody is policing them.
NAME Just to clarify, you don't need to add a proxy form, period. The PM industry made that standard practice, contrary to the best interests of stratas.
NAME I think your strata council was wise not to include a proxy form - unless your strata has a lot of absentee owners who are unable to travel. In exercising the powers and performing the duties of the strata corporation, each council member must act with a view to the best interests of the strata corporation.
Given the problems with proxy farming, I don't think council should encourage those who believe the meeting is not important enough to attend to give anyone else more than their own unit entitlement vote. When a minority come with their hands full of proxies, it makes it a waste of time for others to take the trouble to attend meetings.In the best interests of the strata, I would make bylaws to prohibit sending those forms out unsolicited to resident owners, and to prohibit owners from soliciting proxies also.