Nominations do not Require Approval

Gerry Hyman has written a new article, so let’s discuss it.

The question I want to discuss in length is:

QUESTION:  Every candidate for our board of directors must be approved by a nomination committee established by the board. Is this procedure legal?

ANSWER:  The Condominium Act provides that “the owners shall elect the board of directors in accordance with this Act and the by-laws.” Nominations are part of the election process and the board or a nomination committee cannot prevent an owner from nominating candidates. The Condominium Act permits the passage of a bylaw to govern the nomination of directors but the bylaw must be reasonable. A bylaw purporting to grant nomination control to a committee would not be enforceable, even if the board could persuade the owners of a majority of the units to approve the bylaw.

I concur, candidates for the Board do not have to be approved to run for the Board, especially by a Committee ordered to approve them by the same people they may run against.  In an organization where most, if not all, Board members come up at a specific time, a Nominating Committee can work well.  In a Condominium, it is rarely as there are normally only one or two positions up for election each year with many incumbents wanting to retain their positions.  Therefore, a Nominating Committee is not normally required.

If a condominium feels that a Nominating Committee is advisable, then the owners – not the Board – should be appointing the members.  Also, anyone who meets the requirements under the Act is qualified to run, unless other requirements are found under the By-laws.  However, at the end of the day this means that any owner, and most likely any resident, can run for the Board.  And while the Nominating Committee can appoint the one (or even two) candidates who they feel are the best candidates for the Board, anyone qualified to run for the Board may do so.  As such, unless there will be a vacancy (i.e. the incumbent is not running for re-election), and no one has shown an interest to serve on the Board, a Nominating Committee is not really required in a Condominium.

The other question that Mr. Hyman dealt with had a lengthy answer and dealt with having a clothesline in the backyard of a townhouse.  As it was a lengthy response, I recommend you read the article if you want the full response, however in a nutshell the question asked if an owner could have a clothesline in their backyard and Mr. Hyman’s response was that it would be okay as long as it was freestanding and could be removed easily.

I concur, as long as it is a freestanding clothesline, it would not constitute an alteration to the common elements and thus would not fall under Section 98 of the Condominium Act.  This would be an issue if the backyard is deemed to be exclusive use common elements, and thus not part of the townhouse unit itself.  If the backyard is part of the unit, then no approval from the Board would be required for the clothesline would be required.

However, and especially if the condominium provides the electricity (i.e. the units are not individually metered) then it is in the condominium’s favour if the Board allows an alteration to the backyard for the installation of the clothesline.  However, Boards can sometimes refuse approval simply because they can.  This is one area where the Act could be amended, especially with regards to the Energy Conservation Leadership Act, 2006 which is a provincial act supporting energy conservation, which a clothesline accomplishes by allowing people to refrain from using their dryer to dry clothes.

Simply put, a freestanding clothesline is 100% okay, but one that is attached to the common elements requires Board approval.

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One Response to Nominations do not Require Approval

  1. Pingback: Le comité de gouvernance du C.A. | Élément clé d’une solide stratégie | Gouvernance | Jacques Grisé

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