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Can the Size of the Board be Set by Resolution?
The following resolution has been prepared for owners to vote on at our upcoming AGM:
“To set the number of Board positions to 5.”
Owners will be asked to vote “In Favour”, “Opposed” or “Abstain”.
However, our bylaws state the following:
“… the board shall consist of not less than three nor more than seven owners … and shall be elected at each annual general meeting.”
The election of the board members will take place at the AGM as required, but there will be more than five owners running for the board positions.
So since the bylaws allow a range of three to seven positions on the board, and there will be more than five owners running for the positions, would the resolution to set the number of board positions to five violate the bylaws if it passed?
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0 Replies
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GibsonT
Great question!
The lawyer who wrote our bylaws must have written yours, because we have the same clause in our bylaws.
The number of directors is established at each AGM.
One approach, used at my condo, was to motion at the AGM that there be 5 positions. A dissident group wanted 7 so that two of their folks could be elected. The vote by show of hands was very close, so one person motioned for a vote by unit factors and the motion to elect 5 carried.
In my opinion, the number of people running is not relevant to the discussion.
I do not think that this would violate the bylaws.
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OK, thanks for your opinion. Having thought about it, I think it is correct. It seems reasonable that the bylaws would simply restrict the size of the board to a range, and the owners could choose the size of the board within that range. Probably in many cases they will choose to set the size of the board to equal the number of people volunteering to serve on it (up to the maximum size limit). But they have the freedom to choose a different size.
I wouldn’t be surprised if one lawyer wrote that clause 40 years ago, and it has simply been copied from law firm to law firm and ended up in half the condo bylaws in Alberta!
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MarkH
The Condominium Property Act reads:
Board of directors 28(1)
A corporation shall have a board of directors that is to be constituted as provided by the bylaws of the corporation.
The Regulation doesn’t seem to provide further direction as to the composition of a Board.
In my opinion, if your AGM passes a motion to set the number of board members at five before the election of new board members, the election would be for five members – and thereafter, unless a subsequent meeting sets the number at another figure, by resolution; in the case of your bylaws, between three and seven. On the AGM agenda, that resolution should precede the election.
Our bylaws read ‘The Board shall consist of between five and seven unit owners or spouses of unit owners … and the board shall be elected at each general meeting’. We started out with five members in the initial bylaws (no flexibility) and subsequently adopted the (abbreviated) phrase just mentioned. Subsequently, the board was increased to seven, to spread the workload and to ensure each of our three buildings was represented. It also allowed absentee members not to impair a quorum. The minutes of last year’s meeting show that there were seven nominations, so the new Board was acclaimed.
With regard to similar wording in bylaws drafted by different lawyers, I was told several years ago and in another context that legal drafters use phrases that have been proven to be acceptable in the courts. The result is stilted and old-fashioned language rather than modern ‘simple English’ which we lay people would prefer.
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(@jonfkleingmail-com)
@MarkH-2
OK, thanks.
We are actually voting on this resolution using “restricted proxy” ballots. Our manager has now changed the question to multiple choice voting for three, five or seven board members, but without any plan if there is a tie in the voting. We’ll see what happens.
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