Proxies And Owner Direction

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Attached to every Annual & Special General Meeting Notice you will find a Proxy form.  The Proxy form allows an owner to appoint another individual to vote on their behalf at the meeting in the event that they themselves are not available to attend. The Proxy form is most often provided to a relative, a neighbour or a member of the Strata Council. A person provided the form is called a “proxy” and the person designating him or her is called a “principal”.

The proxy is granted the full rights, obligations and responsibilities of the Owner.  This includes the right to speak at the meeting as any other Owner would have.  Here’s what the Strata Property Act has to say on the matter:

Proxies

56      (1) A person who may vote under section 54 or 55 may vote in person or by proxy.

(2) A document appointing a proxy

(a) must be in writing and be signed by the person appointing the proxy,

(b) may be either general or for a specific meeting or a specific resolution, and

(c) may be revoked at any time.

(3) The following persons may be proxies:

(a) only if permitted by regulation and subject to prescribed restrictions, an employee of the strata corporation;

(b) only if permitted by regulation and subject to prescribed restrictions, a person who provides strata management services to the strata corporation;

(c) subject to the regulations, any other person.

(4) A proxy stands in the place of the person appointing the proxy, and can do anything that person can do, including vote, propose and second motions and participate in the discussion, unless limited in the appointment document.

Some strata corporations have developed a process of placing the resolutions on the Proxy form itself, with a check box system to indicate how the Owner wishes their proxy to vote. While this seems practical, there is no reason we’re aware of under the Strata Property Act to believe that this procedure is binding.  It essentially indicates the owners desires, but ultimately the person they’ve appointed is the one doing the voting and can do as they please.  In Clause (4), the “appointment document (the Proxy form) can limit the proxies ability to “vote, propose and second motions and participate in the discussion”, but it can’t direct them to vote in any specific manner.

Realistically, the idea that proxy appointments can bind a proxy in a certain manner is untenable for two pragmatic reasons as well.  The first is that it would simply be impossible to prevent a proxy from voting one way or another (how would you stop them from raising their hand to be counted in the “In Favour” votes?).  The second reason is that any sort of binding appointment would defeat the purpose of discussion at general meetings, and this is an incredibly important part of the process. It would mean that proxy holders couldn’t be swayed in their decision making (as other Owner’s in attendance might) depending on the discussion, upon receipt at the meeting of additional, key information or from hearing an impassioned argument one way or another regarding the matter at hand.

The Act does have provisions for meetings to be waived and for votes to be held in writing, but it does not seem to have provisions requiring proxy holders to vote in accordance with the instructions of the Owner they represent. We encourage strata corporations to be realistic when insisting on these proxy forms, and to seek legal advice if they wish for a vote in absentia to be binding.

Finally, Strata Corporations sometimes receive requests from Owners who disagree with the outcome of a vote to review the proxy designation.  Keeping in mind that the proxy is the person who attends on someone else’s behalf, and the authorization is really just a piece of paper authorizing them to do so, there are concerns about disclosing potentially private and confidential information.  We’ve quoted below an excerpt from an article published by Clark Wilson on the subject, with advice on whether or not the proxy authorization is a “record” of the Strata Corporation and thus subject to Section 36 of the Strata Property Act:

 

Is a proxy a record of the strata corporation that must be provided to an owner on written request?

No. A proxy is not a record of the strata corporation. The strata corporation must check that the proxy is in writing and is signed by the owner. The strata corporation is not entitled to keep a proxy or ensure that the proxy holder votes in compliance with any conditions stated on the proxy by the owner.