Manipulating the proxy appointee

In February 2015, I saw a proxy form that is described in Gerry Hyman's Toronto Star article on the previous page.

In this case, a proxy form was changed from the form that was going to be included in an AGM package to the proxy form that was actually included in the AGM package.

Draft copy


This proxy follows the Form that is needed to comply with the  Regulations made under the the Condominium Act, 1998. Pretty straight forward. You write in the name of the person you want to be your proxy and if that person fails to attend, then the condo president or Secretary will be the proxy.

Now look at the proxy form that was sent to the owners in the AGM package.

Actual proxy form

This is a major change in the wording. If I read this correctly, the President is the proxy appointee unless she fails to attend the AGM. Only then will the owner's appointee be recognized as the proxy.

So if the owner wants the person of his choice to attend the AGM and speak on his behalf, the owner has to strike out the President's name and fill in his true choice on the proxy form.

What could happen
If the President's name is not lined out, the owner's intended proxy could hand in this proxy form at the registration desk, be thanked for delivering it to the meeting and then be told that since the President is in attendance, he is not a proxy and is not a guest that has been approved by the board so he has to leave the meeting.

Even if the intended proxy appointee is allowed to be an observer at the meeting, he will have no voice or vote.

Condo Q & A
By Gerry Hyman Condo Law Columnist
24 December 2016

Question:
We attempted using proxies to get enough votes to remove our condominium’s directors. But they fell a bit short, Now the board has introduced a new proxy form naming a vice-president as proxy and “failing him, the president — and “failing him” a person to be named by the owner who signs the proxy instrument. Do I understand this correctly that if either the vice-president or president is at the meeting, they will be the proxy and a person named by the unit owner will not?

Answer
Yes! The words “failing him” mean that unless both the vice-president and the president are not available one of them will be the proxy and the unit owner cannot choose the proxy.

Using that form of proxy will render it impossible for owners to obtain enough proxy votes to remove the directors. Presently, however, you need not use the corporation’s proxy form but can prepare your own in which the second “failing him” is replaced by “instead of the foregoing I name . . . ”

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