BYLAWS

To most people, to read and understand the bylaws is not an easy task. Fortunately, their investment in a Condominium Apartment is safeguarded by the Alberta Condominium Property Act which defines the operational boundaries for the Condominium Corporation. The Act is the basis for the ByLaws under which a Condominium Board operates. As the Act is a clearly defined legal entity, there should be no basis for disputes arising between Owners and Boards. However, where problems arise is when Condominium Boards decide to start imposing their own set of rules in conflict with the intent of the Act. The Windtower Condominium Board is no stranger to this situation. If there is a conflict between local ByLaws and the Act, the Act prevails.

Having said that,  there a mandatory requirement on all occupiers to abide by the relevant ByLaws in relation to their use of their apartment, the common property and to respect the rights of other apartment owners.

We do not have the space to look at all the Windtower ByLaws so we will comment on the more relevant and topical ones as far as Owners are concerned, as follows:-

  1. DEFINITIONS

a) “Ordinary Resolution” means a resolution:

passed at a properly convened meeting of the Corporation by a majority of not less than 51% (the Condominium Act does not specify a % required)of all the persons present at such meeting and entitled to exercise the power of voting conferred under the Act or these By-laws; or

in writing signed by not less than 51% of all of the persons who, at a properly convened meeting of the Corporation, would be entitled to exercise the power of voting conferred by the Act or these By-laws and representing not less than 50% of the Unit Factors for all of the Units;

This is the means of introducing an issue for consideration at an AGM or specially convened meeting and is in fact the “official” way of doing it. However, a show-of-hands vote for (i) is clearly democratic BUT if a poll vote is called for, it is quite likely that the Lockley/Law block vote could defeat it. Also in a poll vote, the apathy of some Owners not to vote or assign a proxy means that their vote defaults to the Board. Item (ii) is virtually impossible since the Owners are just not organised enough to get this sorted out.

b) “Residential Unit Committee” means such Persons appointed by the Board who are Owners of Residential Units or representatives of the Owners of Residential Units, and which may be comprised of only one (1) member;

This is an interesting one in that it represents a means for the Owners to face the Board. The Board could not reasonably refuse such an appointment. Why has no-one at the Windtower volunteered for this? The website clearly represents an enabling means. The  Residential Unit Committee has the right to dispute Residential and Common area expenses with the Board (ByLaw 47b) and to get independent arbitration if need be (ByLaw 71)

2.  CONVENING EXTRAORDINARY GENERAL MEETINGS

ByLaw 25.The Board may whenever it thinks fit and shall upon a requisition in writing by Owners representing not less than 40% of the total Unit Factors of all the Units or upon the request in writing from mortgagees holding registered mortgages (and who have notified their interests to the Corporation) against Units in respect of which corresponding Unit Factors represent not less than 40% of the total Unit Factors or a combination of such Owners or mortgagees entitled to vote with respect to 40% of the total Unit Factors convene an extraordinary general meeting. The Condominium Act only requires a requisition in writing made by owners representing 25% of the total unit factors for the units to convene an extraordinary general meeting. (§15)

GENERAL MEETINGS OTHER THAN AN ANNUAL GENERAL MEETING

 The board (a) shall, on the written request of the owners entitled to vote and who represent not less than 15% of the total unit factors for the units, convene a general meeting (§19), and (b) may, whenever it considers it proper to do so, convene a general meeting (see Definitions above)

ANNUAL REPORT (Section 29 in the Act)

 Commencing with the fiscal year of a corporation ending after September 1, 2002, a board must for
each fiscal year prepare an annual report respecting the reserve fund setting out at least the following:

(a) the amount of the reserve fund as of the last day of the immediately preceding fiscal year;
(b) all the payments made into and out of the reserve fund for that year and the sources and uses of
those payments;
(c) a list of the depreciating property that was repaired or replaced during that year and the costs
incurred in respect of the repair or replacement of that property.

The annual report prepared under subsection (1) must be made available by the corporation to the
owners for the owners’ information before or at the time that the notice of the next annual general meeting of the corporation is provided to the owners.

5  DISPUTES AND COURT ORDERED REMEDY (Sections 67 &59 in the Act)

In this section,

(a) “improper conduct” means
(i) non-compliance with this Act, the regulations or the bylaws by a developer, a corporation, an employee of a corporation, a member of a board or an owner,
(ii) the conduct of the business affairs of a corporation in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party,
(iii) the exercise of the powers of the board in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party,
(iv) the conduct of the business affairs of a developer in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit, or
(v) the exercise of the powers of the board by a developer in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit;

(b) “interested party” means an owner, a corporation, a member of the board, a registered mortgagee or any other person who has a registered interest in a unit.

Where on an application by an interested party the Court is satisfied that improper conduct has taken place, the Court may do one or more of the following:-

(a) direct that an investigator be appointed to review the improper conduct and report to the Court;
(b) direct that the person carrying on the improper conduct cease carrying on the improper conduct;
(c) give directions as to how matters are to be carried out so that the improper conduct will not reoccur or continue;
(d) if the applicant suffered loss due to the improper conduct, award compensation to the applicant in respect of that loss;
(e) award costs;
(f) give any other directions or make any other order that the Court considers appropriate in the circumstances.

6   INDEMNIFICATION OF OFFICERS AND MANAGERS   (Bylaw 61)

The Corporation shall indemnify every manager, officer or employee and his or her heirs, executors and administrators against all loss, costs and expenses, including counsel fees, reasonably incurred by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a manager or officer of the Corporation, except as to matters as to which he shall be finally adjudged in such action, suit or proceeding to be liable for gross negligence or wilful misconduct.  All liability, loss, damage, costs and expenses incurred or suffered by the Corporation by reason or arising out of or in connection with the foregoing indemnification provisions shall be treated and handled by the Corporation as Common Expenses.  The Corporation may by Ordinary Resolution, require that all members of the Board be bonded by a recognized bonding institution in an amount not less than Ten Thousand ($10,000.00) Dollars, the cost of such bonding to constitute a common expense of the Corporation.

It is not at all clear from financial statements if any form of indemnity insurance is applied to Board members, probably not, but new disclosure protocols in the 2010 statement should reveal it. However, in the majority of situations, if the Board screws up, the Owners pay for it. On March 10th.2010, one Owner filed claims against the Condominium Corporation for a total of $79,400 alleging the Corporation intentionally interfered with the economic interests of that Owner. If successful, we, the Owners will end up paying for it. So if you sue the Corporation you are in effect suing all the Owners since the Owners are the Corporation.

7.  VOTING AT THE AGM

Voting by Show of Hands

At any general meeting a resolution by the vote of the meeting shall be decided on a show of hands, unless a poll is demanded by any Owner or registered mortgagee present in person or by proxy.  Unless a poll be so demanded, a declaration by the Chairman that a resolution has, on the show of hands, been carried is conclusive evidence of the fact without proof of the number or proportion of votes recorded in favour or against the resolution.  Except for matters requiring a Special Resolution or Unanimous Resolution, all matters shall be determined by majority vote.

Poll Votes

A poll, if demanded, shall be taken in whatever manner the Chairman thinks fit, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.  In the case of equality in the votes, whether on a show of hands or on a poll, the Chairman of the meeting is entitled to a casting vote in addition to his original vote.  A demand for a poll may be withdrawn.

Voting Calculation

On a show of hands, each person entitled to vote for any Unit shall have one vote for that Unit.  On a poll, the votes of persons entitled to vote shall correspond with the Unit Factors for the respective Units owned or mortgaged to them.

Tie Vote

In the case of a tie in a vote taken at an annual general meeting or a general meeting, whether on a show of hands or on a poll, the chair of the meeting is entitled to a casting vote in addition to the chair’s original vote.

Appointment of Proxy

An instrument appointing a proxy shall be in writing under the hand of the person making the appointment or that person’s attorney, and may be either general or for a particular meeting, but
a proxy need not be an owner.

Signed Resolution - Majority Vote

 If a resolution of the members of the corporation requires a majority vote, that resolution signed in person or by proxy by all the persons who, at a properly convened annual general meeting or general meeting, would be entitled to vote, has the same effect as a resolution duly passed at the meeting.