A different proxy form trick

This is a question that was sent to Gerry Hyman, a condominium law columnist for the Toronto Star.

Gerry answered this question in his 10 October 2014 column.

The proxy instrument sent to owners for our annual general meeting states that the owner appoints a named individual whose name has already been printed in the instrument, if present. “Failing him,” a second named individual will be the proxy, if present. It then states that failing the second individual, the proxy will be the person named in a blank to be filled in by the owner.  The intention is that, if a person is named by the owner, that person will be the proxy. The concern is the wording suggests that the owner’s choice will only be the proxy if neither of the named individuals is present. Is there a better wording for the proxy instrument?

Mr. Hyman's answer
Some proxy instruments state that the person named by the owner will be the proxy “instead of” the named individuals and not “failing” them.

Alternatively, the instrument could commence by stating that the person whose name is inserted by the owner will be the proxy, if present, and failing that person the proxy will be someone whose name has been printed in the proxy instrument.

How I would answer this:
This is another way the management company and the board manipulate the election process to give themselves more votes at the owners' meeting.

As I read the description above, the proxy form (Form 9) has been altered from:

2.  I (We) appoint ................................ if present, or failing him or her, Tom Jones (President) if present, or failing him, Mary Smith (Secretary) to be a proxy (known as the "Proxy") and to attend and vote on my (our) behalf at the meeting of owners ...

To:

2.  I (We) appoint Tom Jones (President) if present, or failing him, Mary Smith (Secretary), if present, or failing her ................................   to be a proxy (known as the "Proxy") and to attend and vote on my (our) behalf at the meeting of owners ...

See the difference?

If the challenging candidates were to distribute a flyer throughout the building prior to the AGM, or special owners' meeting pointing out this manipulation of the election process, I am sure they would be able to get new proxies signed giving them the owner's support.

Failing that, I suggest the owners get a legal opinion from a lawyer who is experienced in condominium law to see if such a proxy form would stand up to a court challenge.

It also shows that condo elections are so open to abuse that property management companies would not be allowed to have any role what-so-ever in conducting condo corporation elections.

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