Rod: Good evening, everybody. My name is Rod Escayola and I'm your condominium lawyer with Gowling WLG. Welcome to this February edition of our monthly CondoAdvisor webinar. I don't want to get everybody excited tonight but this may be the first webinar where we're not exclusively going to be talking about COVID. So that's the first yay of the evening. Yesterday, during our preparation talk, we actually thought that there was nothing to report on the COVID front. How exciting is that? But fear not, I think that at 4:50 Doug Ford made an announcement that eventually he would make another announcement. So who knows? Something's coming down the pipe but it wasn't timed with our webinar. So I'm not going to promise that we're going to skip altogether over COVID. Now, where am I at here? So what we're going to be talking about tonight, if we don't talk about COVID, is another very interesting topic. I'm very excited about that actually. Privacy and technology at this age of virtual meetings and electronic voting's. Ever since I brought up the topic we've been swamped with questions. We've been flooded on this topic. So I think it's a timely topic and I think it's a topic of interest and hopefully you'll enjoy it. Now, as usual, what I've done is I called the usual crew and tonight, as I said, we have an additional guest. Thank goodness we had him around to help us with our technical difficulties, initially. So I was looking for a theme. What theme could I use today to introduce our crew? I thought after 10 months of pandemic, and after a whole month of staying at home, maybe the topic could be Looney Tunes. Right? So let's start with that.
Okay, so here's the list of speakers. Our first speaker, from Lash Condo Law speaking on behalf of CAI Canada, a leader in the industry with a creative mind always looking for a solution to help the industry, we have Denise 'What's up, Doc?' Lash. Hi, Denise.
Denise: Hi, everyone.
Rod: Somebody had to get Bugs Bunny, Denise. Sorry. From Crossbridge, and speaking on behalf of ACMO, with a motherly care, and what you'll see here, folks, three very different style of management. I'm lining this one up so there's three different managers coming next and you'll get to see the difference styles here. So with a motherly caring heart, always caring for the owners but always also knowing who had too many cookies, we have Katherine 'Emma Webster' Gow.
Katherine: Great to see everybody tonight.
Rod: Did you make it in? Is she in?
Katherine: I did. Thanks very much, Rod.
Rod: Okay, you're in. Great. Wonderful. From DES Services, always looking to improve the condo planet, always on the look out for any sign of intelligent life, we have Josee 'Marvin' Deslongchamps. Josee, you on?
Josee: <laughter>
Rod: I think this was your favourite one actually.
Josee: It is.
Rod: Your favourite character.
Josee: Perfect.
Rod: That's right. From Apollo Property Management, Director of Condominium Management at Apollo, always cautiously looking for the light at the end of the tunnel, Sean, do you know what's coming?
Sean: I'm afraid.
Rod: We have Sean Cornish.
Sean: That's a little too apt. Thanks, Rod.
Katherine: Oh dear.
Rod: You're welcome. From the National Life Safety Group, helping the condo world avoid chaos, his appetite for safety knows no bound, always calm, cool and collected, we have our Jason 'Tasmanian Devil' Reid. Hello, Jason, you on?
Graeme: So I'm going to go ahead and accept the Oscar Award on Jason's behalf. He just emailed me that he's actually dealing with an onsite client emergency and so he's actually going to be held up. His commitment to safety is in fact that intense.
Rod: Okay, wonderful. Great. So then we have our two condo twins tonight, reunited again, the two condo twins. Your condo lawyers with Gowling WLG. Graeme, I'm going to start with you here. Our governance enforcer, he's vewy, vewy good at it. There it is. Graeme 'Elmer' Macpherson. Best before your beard hey, Graeme?
Graeme: Yeah, actually that photo was taken in 2016.
Rod: If anybody's curious look him up on the Gowling website. You'll see him without the beard. So, we are now moving on to David. David, our gunslinging litigator, patient and forgiving until you're in breach then say your prayers, we have David 'Yosemite Sam'. Okay, David, are you on?
David: I am. Nice. Hi, everyone.
Rod: I think he just quit. He just quit. He just walked home. He said, "That's enough. I'm not paid enough for this, Rod." That's basically what he's saying. So we also have Adam Arcuri from CondoVoter. You don't get a character because that's sort of the policy here. We don't mock our guests, the first time around anyways. So thanks for joining us tonight, Adam.
Adam: Thanks for having me, Rod. Happy to be here.
Rod: Okay, so as usual the question lines are live. The chat line is live. Hopefully we have Michael Clifton and maybe even if we're lucky we have Murray Johnson to keep the discussion going and under control. I'm counting on you folks. Before we jump in, the usual disclaimers. For those of you watching the webinar keep the following in mind. We are Ontario centric. We're going to mainly focus on Ontario. You may need to adapt some of what we say to your jurisdiction. The information we're providing tonight is, to the best of our ability, accurate as of 5:09 on, I guess we're February 2nd I think, 3rd, February 3rd. Most importantly the information we give tonight is general in nature. I mean we can't answer all of your questions. What we're doing tonight is not providing you real actual legal advice. We're providing you with legal sort of flavoured information but you may need to retain an engineer, or a lawyer, or a property manager or somebody that actually knows what they're talking about and put your specific situation to them. Finally, I need to say that this episode is being recorded. It's going to be uploaded on the CondoAdvisor website. It usually takes about a week or so, and if you ever want to watch on demand past webinars, all you've got to do is go to the CondoAdvisor website. To the top right there's a webinar tab and that will bring you to past episodes. What else do I have here? Did I do everything? Yup. I think we got it. The topics tonight are a quick reopening Ontario update and then we're going to dive into privacy and confidentiality and all of that good stuff, in the context of this new sort of virtual digital world. We're handling emails differently. We're emailing people where we before we may not have. We're voting electronically and so there's all sorts of questions that stem from that. But before we do I'm going to turn the microphone to David, I think it's David that's giving us the COVID update today. Am I right?
David: Yup. That's me. I'll do this pretty quickly because last time we all met together we were kind of looking into the future because it had not yet come into play, the stay at home orders and the grey zone lockdown, but now we're kind of coming at least to the end, we think maybe, of the deadlines. So we're still under the state of emergency until at least February 9th. It's possible this is going to be renewed especially when we look at the stay at home order and the enhanced public health measures that are still extended until February 11th. All businesses must continue to allow any employee who can work from home to do so. Indoor organized public events prohibited. Outdoor organized public events limited to 5 and that's only if you're able to social distance. Still masks required in indoor areas and there are more enforcement tools that were provided to the bylaw officers and different police authorities as well. We've seen a lot of stories recently of fines being issued to businesses, big box stores was one of the big blitzes they did recently, and shutting down some parties and other events. As Rod mentioned earlier there was, I noticed on Twitter at about 4:15, another announcement that there will be an announcement next week of perhaps loosening some rules. It might be something similar to in Quebec where they've now opened up a few more of the non-essential businesses but we'll have to wait and see for that. Until then we're still in the same holding pattern.
Rod: Okay, wonderful. Something else to keep in mind, I guess, is the amenities, recreational amenities. Certainly that is our interpretation, our reading of the Stage 1 regulations. I know that there's some different interpretations out there and there's some condo corporations that are indicating that maybe they're getting different signals from either the Municipal Public Health or the Provincial Public Health. I think caution is still the word of the week, and of the day, and so before you open your amenities you really want to make sure that you consult with somebody. As there are fines but most importantly I think the stakes are much higher than the fines. If in fact there's a situation or a community flare up you don't want that to be under your watch. So there it is. That's for that. Let me move on to the, oh. Did you cover this, David? I split it in two screens because the printing was too small.
David: Yeah, no worries. Yeah, same thing. It's just more specific to condos. Again, masks in the common elements and then amenities as you mentioned, closed and no events should be being held in person.
Rod: I was wondering why you weren't covering that but you are. Okay, wonderful. So next topic is this. As I said, we want to focus on privacy in this digital new world that condo land is sort of navigating through. Last spring the Condominium Act was amended to allow a new way of doing business, exceptionally, for a limited period of time. For instance, owner's meetings were allowed to proceed virtually whereas before you would have needed a bylaw to do so. Now you don't need a bylaw. This is valid until the end of May but the Province is consulting Ontario right now to see whether they should implement that permanently. That's why we decided to talk about it today. So the changes that were made last spring are owner's meetings can be done virtually even if you don't have a bylaw, board meetings can be done virtually even if you don't get the consent of all directors, because normally under the Condo Act you need the consent of all of the directors. But for this period of time until May, even if you don't have the consent of all you can hold your meetings, your board meetings, virtually. Communications to owners, or I should say notifications to owners, can be done by emails even if you haven't obtained ahead of time their consent. So the old sort of pattern was you needed an owner to consent to email notification. Now, until the end of May, you don't need that consent. You can just go ahead and send notifications. And electronic voting was also allowed without a bylaw. Again, this is in place until the end of May but the Province is consulting us on that. So a lot of questions flow from this. Can condominium corporation provide owner information to a third party provider? Like CondoVoter, for instance. What privacy legislation applies to condo land? Does PIPEDA, or as Graeme says PI-PEDA, apply? He's probably right by the way in how to pronounce it. What about the anti-spam legislation? Does that apply to condo land? And so and so forth. There's all these questions that come up. We're in a new world and so that's what we want to talk about tonight. And again, hopefully at this end of this meeting you'll be prompted to go and give your opinions to the Province as to whether or not that should be implemented on a going forward basis, all these changes. So, Denise, I think I'm going to start with you. The first question that we sort of wanted to explore was whether or not we need the consent of owners to send them notices.
Denise: Okay and you touched on that. Rod, do you have any PowerPoint slide? I think you had.
Rod: I don't think I do actually. The next one I do is for, and I'm sorry if you did send me one, it kind of slipped through my fingers.
Denise: That's okay. So as you mentioned, Rod, until May 31st, 2021, this year, you don't need agreements or consents from owners to send electronic notices. Depending on how the Ministry handles all the feedback we may never require that. But for now, until May 31st, you don't need that. There's been a lot of confusion from managers who contacted me. They're not aware of this, but also consent to electronic notices, we're just dealing with the notices themselves. So preliminary notices, notices of meeting. If you're sending an email, if you have an email address for an owner, you can send emails to them. The Condominium Act specifically refers to notices. That's where when you're talking about electronic voting, electronic voting is not a notice. You don't need consent to electronic voting. Before, where there was a requirement for a bylaw, as long as you had the bylaw then you could send electronic ballots to owners. Now there's no requirement for a bylaw until May 31st. So you can send emails, that's electronic ballots to owners, you don't have to worry about consents.
Rod: Right and I think it's a very important distinction that you've made. Regardless of what's going to be the outcome of the consultation, even if we do end up going back to requiring consent from the owners, that really deals with the formal notifications under the Condominium Act. It certainly does not deal with it every communication. So if in fact there's a communication from management, even to advise of a breach of a rule or whatnot, you don't need their consent. So that's got to be very clear. Okay and so I guess the next question, and I'm going to take this one on, and I think you're right, we did have a slide and I don't know where it ended up and I apologize for that. So the next question, that I'll tackle, is whether or not an owner can sort of opt out of this email notification. You may get some pushback from some owners who will say, "Well, I never consented to that so you cannot send me the package electronically." You may get some pushback from some owners. I just turned my camera on. Hello, everybody. Hi, my name is Rod Escayola. I'm your condominium lawyer. I don't know what happened. I think my camera was off. You may get some pushback from some owners that may say, "I never consented to that and I want the package in an envelope and I want to get a paper copy." So can owners opt out of email service? We don't know the answer yet and I think the Province has to turn its mind to that. But what's interesting is that under the Condominium Act right now there's a section that deals with the address of service. Now the default address of service would likely be the unit but an owner under section 47(4) of the Act could say, "No, actually. I'm not going to accept service at the unit." Imagine a situation where you're leasing your unit out and an owner could also advise a corporation that they're not going to accept it by mail at the Municipal address or at the door. You can't serve them properly going to the units. Now if an owner doesn't take a step to opt out you can always serve at the Municipal address of record. You can always serve by going to the door and sliding it under the door but an owner could opt out of that. So I can envision a situation where an owner would also be able to opt out of email service. That's something I think that the Province needs to turn its mind too. Can an owner eventually opt out of email service? Until the Province makes/accepts whatever changes they want to put in play, just keep in mind that, for now, an address of service is one where you can accept mail by Canada Post. So that's something else that's going to change in the future. But for now I would say this. Certainly until the end of May an owner can not opt of email notification and that brings me to next question which is to Josee. How do you cajole owners into email communication? Because there's probably a bit of resistance because it may feel different for owners. So how do you cajole them into email communications?
Graeme: You'll just have to unmute first.
Rod: We have our first un-muter.
Josee: Boy we have a hard time with technology tonight. For us is part of our introduction meeting that we have with all owners and residents. We gather all the information, including the email address. Of course you always present the agreement to receive notifications by email and if you have that then it's easy enough. A lot of people do not fuss at that point. Sometimes they do want to opt out. They'll write in and say, "I got your email. I have your 110 page package. Great, thanks for that. I can't read it on my small phone. I want a printed copy." We take that as an opportunity to discuss with them the administrative costs and the mailing costs and all that good stuff of printing everything for them. We generally try to encourage them to remain on the list. To not opt out of the list. We always do provide a few copies printed on site where they can go and pick it up at the site office or at the concierge's offices. Certainly for those who are unable to read it you have to be a little bit concerned about accessibility. But for the most part it works well and it's also always a good reminder for people. A lot of people will want to email you about other things about ongoing events, about complaints, about requests. It's always a good idea to make sure that you have a consent on file with them for communication by email, and if you don't, to remind them that, "You don't accept our communications by email and it would be preferable then if you we stay in paper print." I think sometimes when they realize that they won't necessarily be able to communicate quite as frequently with you by email, if they don't reciprocate and accept yours, then it helps to motivate the population of that list.
Rod: Okay, so the what's good for the goose is good for the gander, Josee school of thought. So basically if somebody says to you, "You can't communicate to me by email." well maybe then he or she can't communicate with you by email. Right? If we're going to go back to the telegraph.
Josee: Not the telegraph but yeah.
Rod: To the Pony Express. That's maybe a good way of incentivizing them. Now I see some questions coming in and a lot of you are sending the questions just to the panelists. I encourage all of you, and if you're going to put something in the chat, make sure that you click on all attendees and panelists, so whatever the option is because otherwise only I get to see it. I saw a question from ... in Ottawa who's wondering what do we do with people that don't have an email address? I wonder if I can turn that question maybe to Sean. I mean, how do you handle that? I know that wasn't scripted so good luck, Sean. Is he faking some technical difficulties? Josee, or maybe Katherine, do you want to help us with this? What about people that don't have an email address?
Katherine: Well obviously if you don't have an email address you do want them to be able to participate in your virtual meeting and Adam's going to help us out with some extra tips and tools that we now have. So you're going to make sure that they receive a printed package so that they know all of the coordination details. As Josee mentioned, for instance, assisting within the community and teaming folks up so that they could learn some of the new technology. I've had folks who have arranged some physically distanced abilities or phoned a grandson or a granddaughter to help them connect. So there are lots of opportunities there, making sure they know when the meeting is and to try to assist them to attend is very important. Old fashioned proxies are still good for being enfranchised. Being able to exercise your vote. But some of the great things that Adam has later in the program I think are going to be really interesting to everybody as well.
Rod: Exactly. At the end of the day, by the way, it's not different than someone telling you that their address of service is offsite. So when you have your registry, when you have the owner's registry, in some cases you'll know to communicate with people by email, and other cases you'll know that their address for service is their unit, and in other cases you'll know that their address of service is offsite or out of Province. So it's not really different in that sense. If Sean is back on one of the questions I had for you, Sean, is what must you continue to send by mail? Or what should you really sort of keep sending by mail? Is Sean back on.
David: I think he's dealing with some tech issues. He's trying to get himself back on.
Rod: Okay. So the answer to that question, dear folks, is this. There's some instances where you absolutely want to make sure that there's no question as to whether or not somebody received something. Any legal proceeding has to be served properly. If you're dealing with a question of arrears, I certainly would send it by email, but I would also send a copy at the Municipal address or at the address of service you have on record. Because you don't want any sort of funny business. Oh it went into my spam, I didn't get it, whatever it is. So legal proceedings, very formal notifications. If you're dealing with a very contentious situation I actually usually send it both by email and by the good old Royal Canadian Post. Okay, so now let's go to David. The next sort of question that we have on the agenda tonight is since we're now emailing our good owners all sorts of information and notices, does the anti-spam legislation apply? Can they sort of say, "You're spamming me. Stop sending. Stop writing to me."
David: Well, as someone who receives several dozens or hundreds of emails a day I wish the anti-spam legislation applied to more things than it does. But, no, it does not apply to communications between the condominium and owners or management and owners. It's really specific to commercial electronic messages which, as we have here, is defined to be at its purpose to encourage participation in the commercial activity. Being purchasing, selling, bartering a product, providing a business. It is not meant to cover this communication that owners receive so if property managers out there are getting the, "Stop spamming me." that's not spam. It's legitimate communication that owners should be receiving that way.
Rod: Right. Absolutely. Now again, at the end of the day, certainly after May 31st depending on how the Province changes its approach, I think the proper etiquette if somebody absolutely does not want to be communicated with via email that's probably a legitimate request. But as Josee explained you got to explain to them the realities of life and what that means and the impact it has. But it's not spam and the anti-spam legislation does not apply. So now turning to Graeme. The next question that we often hear is whether, and I'm not sure if we say PIPEDA or PI-PEDA, but certainly whether the Personal Information Protection and Electronic Documents Act. So let me start with this question, Graeme. If you were to summarize on a t-shirt what PIPEDA deals with, what is it that they deal with?
Graeme: So if I were to summarize it on a t-shirt I would actually probably put something very similar to what's in the slide there. Basically, PI-PEDA or PIPEDA, call it whatever you want just don't call it late to dinner, is Federal legislation and it applies to every organization in respect of any personal information that that organization is using or collecting or disclosing in the course of its commercial activities. So what the purpose of this Act is, is to ensure that when an organization is collecting or using or giving out personal information, that it's doing so for only the proper and right purposes. It's not doing anything unlawful or nefarious and that there's proper checks and balances in place to make sure that people's information isn't improperly being used without their knowledge or consent.
Rod: Okay, so really a piece of legislation that's there to protect personal information. Are you able to give us a brief summary of what personal information is? Or did you already do this and I missed it?
Graeme: Uh, no, I didn't. Without citing the Act it's pretty much any information about a person that could identify them. Their address. Their location. Their coordinates. Their income. Anything like that or their health information these days. That's been relevant. For the most part anything under the sun that could identify or is related to that individual.
Rod: Including email addresses. Including name.
Graeme: Yeah, yeah. So absolutely. Phone number, address, anything that contacts them.
Rod: Okay. Exactly. So the next question then, Graeme, would be this. Does PIPEDA apply to the condominium world?
Graeme: So the answer to that is maybe. It depends who you ask. Personally, and I'll preface this by saying we don't have any sort of judicial answer on this one way or the other. I would say that a lot of the authorities seem to say no. Some of the authorities suggest maybe, and as I'll get to at the end of this, the best practice is to certainly operate as though you are living in a world in which it does apply. A pro tip for most legislation, a lot of legislation has a section called Application that tells you what it governs. What it's about. PIPEDA, it applies to organizations that collect, use or disclose information in the course of commercial activities. It goes on to say that it does not apply to, and this is important, it does say to any individual that is collecting, using or disclosing information for personal or domestic purposes. We'll get back to that in a little bit later. Then I also, as a little bit of more flavour, it's also important to note that under PIPEDA an organization can disclose personal information without that person's consent or knowledge if the disclosure is required by law.
Rod: Sorry, I missed that. Go ahead.
Graeme: Okay, so what I was going to say is that what's the Act tells us and I think what's important there is what's highlighted and bolded. It applies to anything that any organization is collecting information in the course of commercial activities. So, like I said, we don't have any sort of ruling from the courts on whether this applies to condominiums, but the Condominium Authority Tribunal has weighed in on this question, and I think I have some of that on the next slide. So, as you can see here the Condominium Authority Tribunal, which again primarily deals with record requests, just go back one slide. It has, in 2020, on a couple of occasions had the opportunity to address whether PIPEDA applies to condominiums when answering records requests. It has on multiple occasions found that PIPEDA probably does not apply here. In the two decisions I've got referenced here I think the lessons that can be learned are, from the top one, and those citations are there in case anybody wants to give themselves some nice reading material, in the top one the Authority Tribunal found that because there was no evidence that the condo was engaged in commercial activities that it didn't really seem like PIPEDA applied. Even if the condo was engaged in commercial activities, because the records request sections under the Act and its regulations require these records and documents to be provided to owners on a proper request, then under section 7(3)(i) of PIPEDA that I have read earlier, because it's required by law the organization, being the condo, would have to give that information over anyway. In the second cap case we've got there the question was asked, "Well. Hold on. What about if a condo is hiring contractors or employees? Doesn't that sound a little bit like commercial activity?" The Tribunal found that, sure, maybe it sounds a bit like commercial activity but it noted that when a condo does something to manage the property, or the assets of the corporation, it is doing that on behalf of the owners. So if it's doing something like that on behalf of the owners, it's really doing it in a residential sense, rather than in commercial sense. It went on, and that's not here, but it did go on to find that if you make a comparison between a condo and say a normal house, a non-condo residential situation, if somebody living in their house hired a contractor to do something, it's not really a commercial activity. That was extrapolated to if a condo is doing that on behalf of the residents it may not be a commercial activity.
Rod: Let me just interrupt you.
Graeme: Yeah.
Rod: Let me just interrupt you, Graeme. You're serving the entire buffet here. This is fantastic but let me just push you along simply to sort of get to the finish line here. So I guess my question will be whether it applies or not and I think the answer is what? It does not apply because it's not a commercial activity. Right? That's certainly the position that everyone's taken so far.
Graeme: That seems to be the way that the wind is blowing. Yeah. Again, we don't have a judge who's commented on that.
Rod: Right. Okay. But regardless, I guess, let me ask this question. What would be the best practices?
Graeme: The best practice is to certainly conduct yourself in such a way that you treat any personal information you collect with as much care as is possible. You only disclose what absolutely has to be disclosed. You keep the private information and personal information as close to your chest as you can, and you ensure that any collection or disclosure of private information that you are engaged in, you have to make sure that's in accordance with the Condominium Act. It's also probably in every corporation's best interest to conduct themselves as if PIPEDA does apply to them, just in case. That would mean that it's worth looking into appointing a privacy officer for your condominium to ensure that you're complying with PIPEDA. In order to do that, the best practice is to probably implement a privacy policy. Like I said, even if PIPEDA doesn't strictly apply, it certainly can't hurt to have an extra check and balance in there to make sure that owner's information is being treated with the care it deserves.
Rod: Okay, wonderful. Thank you so very much. We seem to be having a delay and I think it's on my end. So hopefully you can hear me. I've turned my camera off. You won't be disappointed. My face hasn't changed. It's the only face I've got anyways. Can you hear me, Graeme?
Graeme: Yup.
Rod: Yup. Okay, perfect. Wonderful. Let me move on to the next topic because I really don't want us to run out of time and hopefully we'll be able for the next webinar to have a better signal. One of the questions that comes very often is this. What kind of information can we provide to third party service providers? For instance, what kind of information can I provide to CondoVoter or GetQuorum or obligations of any kind if I, as a corporation, ... in disclosing? Because obviously for electronic voting to work I need to send someone, like the good people at CondoVoter, I need to send them the name of my owners and I need to send them their email address. I need to send them information as to whether they're in arrears and so on and so forth. The question that came up was whether or not the disclosure of this information amounted to some kind of a breach of some kind. While we know that PIPEDA likely doesn't apply to condos that doesn't mean you can just go around and disclose all sorts of information. I think the starting point to answer this question will be this. This is not a new question. It's new in the context of electronic voting but corporations have been providing information to third party service providers for decades. I mean think of your property manager. They have all the information. They hold the Caramilk secret and they know where you live, they know your name, they know if you're in arrears, they know the weight of your cat, they know all of that information. That's not new. Similarly when you retain a lawyer and you tell them, "Graeme is in breach of whatever, XYZ rule." and I get information to be able to write to Graeme and tell him that his cat is overweight. Right? So this is not new. What you have to keep in mind is that there's a fundamental difference between disclosing information and transferring information for the purpose of processing. This is exactly what's happening now in this new digital era. What's happening is that the corporation will turn some information and you need to be very focused on that. You can't just turn the whole book to CondoVoter, or to whoever, or to GetQuorum. You've got to provide the information that's required for the purpose of the task that you're delegating. You're basically delegating a task to a service provider in order to gain some efficiencies and by doing that you transfer this information for the purpose of processing it only. Now having said that this transfer of information that takes place behind the curtains, you have to take whatever steps you can, as a corporation, to ensure that you're providing this information to people that are trustworthy, to people that have, at the very least ,the same precautions and same safeguards as you would to protect and preserve this information. You want to make sure in your contracts with CondoVoter and GetQuorum, you want to make sure that they're not going to disclose this information to a third party or to somebody else, and they're not going to use that to suddenly spam you with an invitation to various cruises or to buy books or to whatever it is, right? So as long as you're transferring only the information that's required for the purpose that it is required, and you're doing so in the context where there's a clear agreement with a service provider as to how they will treat that information, then you're good. Then you're not inappropriately disclosing information. I think what I'm going to do, eventually, is I'm going to pose a link to an article from the Canadian Privacy Commissioner on that very same question. It's a bit old but it's very easy to sort of understand and it kind of encapsulates the debate over improper disclosure of information versus transferring for processing. Denise, anything to add this?
Denise: No. I think most third party providers, and I know CondoVoter has this because I looked at, they have their terms. They have a privacy policy. So those are the things that you want to make sure that the service provider has and ... really someone ...
Rod: Okay, perfect. So let's put Adam on the hot seat now. What information do you need, Adam? What's the kind of information that you need and what's the information you don't want or you don't need?
Adam: It's a good question and it's fairly basic information. We'll actually provide a template for an owner's list to be sent to use to ensure that we only receive the information that is required. That protects us and it also protects you. That information is first name, last name, unit number, email, going forward and included now, phone numbers as well. If that unit is in arrears we don't need any other information other than just notifying that they are in arrears or not in arrears. Owner occupied units, and that's for the purpose of dynamic ballots, if an owner occupied can only vote on a certain position. As well as joint owners or related owners.
Rod: Okay. And, Katherine, what kind of information do you not provide?
Katherine: I think the information Adam's kind of included, if they are in arrears it's because they are ineligible to vote, which is relevant to what Adam is doing. The value of that arrears is completely irrelevant to what he's doing so it's that kind of detail that you're looking to remove or excise for many of the records. That's simply because what you're doing, further to what Graeme presented earlier, is you're providing information with a purpose and only for that purpose and no extraneous information.
Rod: Okay, perfect. Wonderful. Thank you. One of the questions that I saw in the chat line is whether or not, since we're talking about disclosing information, whether or not owners are entitled to get the name and address of other owners. Denise, do you want to answer that in 15 seconds or less?
Denise: Yeah. I think that we all know that you can get it through a records request, as long as you're entitled to names and unit numbers of other owners. It's an owner's list. So not email addresses or not phone numbers. Definitely not.
Rod: Perfect. Unless, of course, there's some communities where people voluntarily provide some of that information to do like a kind of a condo log, phone booklet, whatnot. That's something else. If people consent to that, obviously, but otherwise just like Denise said. You get the address, you get the name but you don't get the email address. So moving on to the next topic, hopefully we're not going to run out of time, is I want to do deal with privacy of voting ... ... and I want to deal with this in three stages. Whether the results is relevant. Knowing it ahead of the meeting. Whether or not the corporation should be able to get a sneak peek at the results and then we're going to ask about what about at the meeting. What information should be provided about the results of the election at the meeting? The next question, or the next phase will be, what about after the meeting? So I'm going to start with you, Denise, and I'm going to ask you this question which is should condo corps get an advance sneak peek at how many votes we got in and which way the wind is blowing and so on and so forth.
Denise: I've been wrestling with this and I think many of us who've done these virtual meetings happen. So there's a difference between knowing whether you have quorum for a meeting or whether you know whether you're going to have enough votes to pass a bylaw versus knowing how the directors are doing, how the candidates are doing and what the results are before they're finalized. I think some of the reason that this has been a bit complicated is because of advance voting versus electronic proxies. When you're dealing with advanced voting, those are votes that are pretty much like putting a ballot in a ballot box, although you can change your electronic vote all the way from when you start 2 weeks ahead of the meeting until the meeting itself. With electronic proxies, and proxies, you can actually see the votes. So you can see who has voted for who. That is part of the problem here is that if you're using an electronic proxy system you get to see how the directors are doing, and details as to how a bylaw vote is going, and I'm not sure that's how it should be. I think the difficulty here is this is all new to us. We're concerned about the integrity of the voting system. So really, should we not know how the vote is going until the actual meeting starts? I'm just throwing that out there. I know this will be debated here amongst the panelists.
Rod: Right. And so there's various schools of thoughts on this. Maybe I'm going to turn to Josee and I think what skews the question or the discussion is this, is that in some cases when people are voting by proxy some people say, "Well ahead of time the management knows of how many proxies came in and they may even know what's in the proxy." So some of the questions that people are asking is why are we treating the electronic voting differently than the proxy vote? I'm not sure we are treating them differently. So, Josee, yesterday I think you had a fairly strong point of view. Let's deal with proxies first, with the information that's found in the proxies, do you know that ahead of time? Can you sort of read the results?
Josee: It is an option. I think you can communicate with the service provider and some of them certainly will tell you the results of a bylaw vote. I don't think they would disclose, I would hope not disclose, information on a director vote. But certainly the question has been asked of service providers how am I doing? Do I have my bylaw passed yet? Yes or no. How are we doing so that you know whether or not you should go canvass for more proxies. I disagree with that practice. In our condominium corporations, always when we solicited proxies in the past and should not say 'solicited', we're not allowed to do that, but when the package went out and said there's a proxy on the last page. If you complete a proxy please put it in a sealed envelope clearly marked proxy and addressed to the board secretary, it goes to the board and those proxies are opened at the registration. You don't know in advance whether or not you're going to achieve what you're trying to do at that meeting and I think that's proper. That's protecting the integrity of the voting process. I want to know whether or not I have sufficient votes come in to hold the meeting. Do I have quorum? I will communicate with the service provider and say, "I need 51% to proceed with this vote. Do I have 51% of my votes in?" And they say, "No, 35% - 38%." Then I'll write to my ownership to encourage them to submit proxies and to vote but that email shouldn't be skewed. You shouldn't be telling them, "We're almost there. We almost achieved what we're trying to get done." You just want the votes to come in. I don't think it's proper that the manager or the board know in advance.
Rod: Okay. I tried to change my microphone. Hopefully that's a bit better. I'm not too sure. One of the questions I guess that we're struggling with is that sometimes, especially when you vote, I think what is clear let me just open it a bracket here, what is clear is that if we're talking about electing directors, none of that is known ahead of time. I think everybody is on board on that. That's not even a question. The struggle, if there is a struggle, is how do we deal with whether or not we'll have achieved quorum for the purpose of passing a bylaw. That's the only question that is worth having a discussion around. In real life, and the in person meetings, you'd look in the room and if you don't have 50% of the ownership present then you know that you won't be able to proceed to a vote. Then you can invite a motion from the floor and then you can adjourn the meeting and then you can postpone that vote at a later date. So the issue though is that in a virtual world you may not know ahead of time whether or not you have enough votes to meet quorum. I think that's the struggle that we're kind of talking about. Anything to add, Denise, or Josee?
Denise: I think the difficulty here, and a lot of condo lawyers are participating in this practice, is you may know that you have 60% of the owners who have voted for the bylaw and I think, Adam, you've taken this question from lawyers who say, "We have 60% but has the bylaw been voted in favour? Because we want to know if we should adjourn the meeting. If we adjourn the meeting we'll be able to get more votes in favour." This is the difficulty that I have on how the practice of adjourning has taken place now with virtual meetings and whether that information should be provided. Should you know that owners have voted in favour of a bylaw before you decide to adjourn?
Rod: Yup. So I guess a question, and maybe that's the way to approach it is this, how many votes have come in? I don't care which way they voted so how many votes have we received? Because we need to know if we have quorum to even proceed. Then the next question could be have we received 50 votes one way or the other? As opposed to how we close are we to passing the finish line? Have we received 50% one way or the other? If the answer is, "No, you haven't received 50% one way or the other." I'm not sort of canvassing the vote. I'm not sort of trying to stack the cards. Then I know that we don't have enough to really know, one way or the other, whether you have 50% of the owners in favour or against the bylaw. I don't know if that's too cute.
Denise: Well, but it works differently with electronic proxies. That's advance voting with electronic proxies. You know that information. I think that information is made available.
Rod: Right.
Denise: So you know. So it's up to the Chair's decision whether they want to adjourn the meeting or not.
Rod: Right. Oh my goodness we have 9 minutes left.
Denise: Okay. We'll stop that topic.
Rod: Okay. So what about the results at the meeting? I'm going to go to David. David, so at the meeting we know that Denise has been elected and we know that Josee has not been elected. Often we hear we want to know the numbers. What's the best practice?
David: Yeah, this also came up in the chat as well. I know it's a popular question and it came up in some of the meetings that I've personally chaired as well over this past few months. There's nothing that prescribes that you must divulge the exact numbers of who was voted in. Our practice has been not to divulge those numbers. It's very easy to say who has been elected and there are certain records of the corporation that are held on the back end. If someone really wants to do a records request they might be will they get something afterwards? But it's our practice not to announce Jane got 10 votes and John got 1 vote, and that the 1 vote was from his only friend in the condo. It could be embarrassing for people you know. So we've kind of taken that position to just not give the exact numbers other than to provide the results of who has been elected.
Rod: Right. I'm not sure if Sean is back on the line. Is he.
Sean: Yeah. But nothing to add. David nailed it. We don't see an upside to disclosing the actual vote results for directors. So we don't do that as a general rule.
Rod: Right. As David said I think if somebody really wants it you can say that they can always put in a records request. So that brings me to the last leg of this discussion. What about after the meeting? Are people entitled to know after the meeting that Josee got 1 vote and that Graeme got 100 votes? Is that information that they're allowed to get?
Katherine: It's a record of the corporation after the meeting. You have a scrutineer's report that scrutineer's of the meeting would register with the condominium corporation. It's something that can be requested.
Rod: Okay.
Katherine: Sometimes the reason why folks do want to have that information announced at the meeting is they feel it may stop somebody from making a records request after the meeting. But I tend to believe that that's something that is the natural course of business, and I want to make sure that as many people as possible may be interested serve as directors run in elections, and I don't want to ever for anybody to be discouraged because they didn't get a grand number of votes. So I think that's the better course of action.
Rod: Okay. Adam, we called you in tonight to talk about telephone voting, and we're sort of running out of time, but I want to make sure we discuss that because there's yet another option that is being offered to owners. First we went with electronic voting. Then some people said, "What about people that are not familiar with the practice? What about people that don't have any computers?" So tell us more about this brand new telephone voting and you'll have to sort of summarize it a bit because I think we're running out of time a bit.
Adam: Of course. So this is a question we hear all the time. It's the first question we get. What if I don't have a computer? On this session today I saw those questions coming in the chat. For the property managers joining us today it's going to be the first question that you get as well. So we quite often look for accessibility features to ensure that we can increase participation across the board. This was something that was born out of those discussions is the ability for people to phone and place their vote through keypad presses. So the way that this works is a PIN number is provided that's specific to the unit. Very similar to a secure token for the electronic ballot. You can call into, in our case the CondoVoter voting line, you use that PIN number that identifies who you are and your unit, your building. It's all the information to you stored in our database. We walk you through the process. Essentially we walk you through with intelligent AI, that's text to speech, and that's important because we know that the ballot can change many times over. Especially with advanced voting. We'll see candidates register after the nomination goes out. Specifically in the cases of nominations from the floor during meetings. This vote by phone accommodates all of those real time changes. You phone in. You follow those prompts. You place your vote using the keypad or voice recognition and by doing so that information is stored, electronically, in line with all of the electronic voting that we have received in advance as well. So this all happens simultaneously and it builds upon the existing feature sets of our product. You get a confirmation of how you voted that can be vocalized over the phone as you put in those entries. You also receive an email if your email is on file as well. You can actually use both processes. You can place your original vote through ballot and at the meeting itself if there's a nomination from the floor. You can phone in in real time and update that ballot preference before voting closes. A lot of benefits are offered here. It's an alternative to paper or electronic proxies. It integrates directly with the existing platforms. Results are available in real time. Provides those additional accessibility options and it's full flexibility to change your vote, right from the get go, all the way to the end of the meeting closing, voting closing. And again, dynamically accumulates the nominations from the floor. I do have a sample, Rod, if we have time where I can actually play for everyone to hear what that call would sound like. It's about a minute 45. If you would let me play that I do have that hear to go.
Rod: Okay. So I'm going to stop sharing my screen. Maybe not the full 2 minute 45 seconds but just maybe the beginning so we get a flavour of it.
Adam: No problem. You can cut me off.
Rod: You should be able to go ahead now.
Adam: So one second there. If you can just confirm when you can hear this.
<sound of telephone ringing>
Rod: Yup.
Adam: Perfect.
"Thank you for calling CondoVoter's telephone voting system. For security purposes please enter your 6 digit access number at any time. Your access number will have been sent to you via mail, text, email or by phone. If you are missing your access number please contact your property management representative."
<click click click click click click > So that's the sound of the key presses that someone actually entered in their PIN code.
"Thank you and welcome owner of unit number 106 in building number CVCC1001. If this information is correct please press one. If this information is not correct please hang up and contact your property's management for further assistance."
Rod: Okay.
<click>
"Thank you. You will be voting on 4 ballots. Ballot number 1 is for the election of directors. There are two open positions which means you may vote 2 candidates in this position. There are a total of 4 candidates."
Rod: Okay. I think we got it.
Adam: Thank you for letting me play it.
Rod: That's wonderful. No problem. So it's very flexible. It provides you with all the options. You need to stop sharing your screen because I'm going to take it over again, Adam.
Adam: It should be good.
Rod: Okay, wonderful. Not that we have an exciting slide but at least you get to see when the next webinar. Okay, so that's very good and so there's really no excuse now for people not to be able to participate to these new sort of virtual meetings. People can vote electronically. People can vote by phone and people have been used to doing things by phone for the longest time. We'd probably have to go back to the Spanish Flu to find someone that was not able to work it through a phone, I guess. So that's good. Anything to else, Adam, before we move on?
Adam: No. Those are really the highlights. Yup. Thank you for letting me share that today, Rod, and we look forward to any feedback that anyone has. You can find more information on the website, condovoter.com.
Rod: Wonderful and we'll put a link to it. Okay, folks, we're at the one minute before 6:00 and lots of you have to go to for supper. So what we're going to do this time around, we, for the parting words I actually have a topic for each of you. So it's not going to be the kumbaya moment. I actually need information from you. I'm going to start with you, Sean. I'm going to thank you for being a usual member of our crew but I'm going to ask you this. Tell us about this fillable Status Certificate that appears to now be available on the CAOs website.
Sean: Yeah, absolutely. The CAO dropped a new fillable PDF of the Status Certificate on their website. I believe it was Monday. Great initiative by them. It's a nice form in many ways. The challenge is it only allows you to enter one unit on the form. Of course many owners own a dwelling unit and a parking unit, dwelling, parking and lockers, etcetera, which traditionally would be contained on one Status Certificate if it's in the same corporation for the same owner. So that's a bit of a challenge. We put a call into the CAO to try to get clarification from them. I won't expect a response for another week or two but we're certainly following up on that because that limits your ability to use it properly, from our perspective.
Rod: Okay. Well the only thing I'm going to add to this is I actually reached out to them, I didn't have that question, and they actually responded quite quickly.
Sean: Oh, nice.
Rod: Right. So to my surprise this form has been available for many, many, many, many months actually. So maybe we didn't have a party around the form because I also learned of it this week I think. Denise, my question to you is this. Thank you, first, for being part of our group as usual but my question to you is this, Denise, from Lash Condo Law, if the Province allows e-meeting and e-voting moving forward do we still need a bylaw?
Denise: I guess it will depend on what the legislation is. Will it be in a regulation and how detailed will it be? As you know, Rod, and you and I worked on this bylaw together, our bylaws are pretty detailed. They're like 2 to 3 pages of bylaw. So unless those provisions are really incorporated into the legislation it may still make sense for corporations to do these bylaws.
Rod: Okay. No, I agree. I agree because we want to make sure that the process is transparent. We want to make sure that it's robust. We want to make sure that it provides owners with real time meaningful participation. We don't want people to do their AGMs on Tik Tok. We don't people to prevent full owner participation. So I think that will be important to see what the Province does and if not a bylaw will bring all of that added value to the table. Graeme, did we get Jason back on the line?
Graeme: Uh, no, we did not get Jason back on the line.
Rod: Okay. So, we'll move on to Katherine. Katherine, thank you so much for being with us. Katherine of Crossbridge also speaking on behalf of ACMO, and my question to you, Katherine, maybe some words of wisdom about COVID fatigue and not letting our guards down.
Katherine: It's very important to now, I'll put on a plug on behalf of Jason because when you participated in our call in advance of this yesterday he wanted us all to go back to basics. To take a look and make sure we were documenting things properly. I know in my neck of the woods there have been reports that published the fact that they will be visiting condominiums to ensure that they are compliant. So this is a key reminder to you. Make sure you have all of the necessary signage related to masks and physical distancing. Make sure you have your safety plan in place and updated, especially if you first put it together way back when they first came out in April, and if you're looking for a resource the CMRAO, at their website, does have one posted and it's based on the reopening plan or framework. We're all a little bit tired, a little bit exhausted but these things are important so good reminders to everybody. I'll follow up with one item on the fillable proxy. Perhaps it's intentional and that's because individual parcels are individually deeded and titled. They may not be being transacted at the same time so be cautious, be conscientious of that. When you do have a Status Certificate request because it may not be intended that they sell all of their parking spaces during the same transaction.
Rod: I think the issue may be that sometimes they are being transacted together so you end up having to issue three Status Certificates.
Katherine: I understand the problem and maybe that is as it should be. That' just a point to be made from my side of the fence.
Rod: Okay. So, Josee, parting words and maybe the unscripted question to you is are you going to charge three Status Certificates for the guy that has the unit, the parking and the locker?
Josee: Not a chance.
Rod: Not a chance. Wonderful. Okay, thank you Josee for being part of the crew again and I'm going t keep moving on because we are past the 6:00 deadline and I can just smell the cooking in the kitchen right now. David, 35 seconds or less, on the new slip and fall protocol that we keep postponing.
David: Yeah. I keep having slides prepared for this. So very quickly the Occupier's Liability Act has been amended and this now requires within 60 days of a slip and fall incident the person who suffered the injury must notify the occupier. So in the cases of condos, it's the condominium corporation, of the date, time and location of the occurrence or else they may be statute barred from bringing that claim to court afterwards, except with certain exceptions. If the injury resulted in death or if there is some sort of reasonable excuse and the defendant is not prejudiced in its ability to defend the claim. So 60 days is now the new deadline for those types of slip and falls.
Rod: Right. For the injured party to give notification to the corporation and that gives the corporation a good chance to go grab evidence and, most importantly, go and clear the ice patch and make sure that you don't get a second slip and fall there. Graeme, you're the conclusion today about the Ontario consultation.
Graeme: Like I said, I didn't say it, but like everyone said we don't know what's going to come of that or what changes it's going to bring about but it is important to try and get as many view points in to hopefully bring the Act into modernity in such a way that will still work with everybody and reflect what actual condo living is like.
Rod: Okay. So you folks have until February 8th to go and give your points of view to the Province. We're going to put a link on our website. Adam, from CondoVoter, I'd like to thank you but also I'm going to ask you one quick one before we go. One pointer to make an e-meeting a success. In one sentence.
Adam: Yeah. First of all, Rod, so much for having us. I was happy to share that with you guys today. It's always a pleasure to be on here. Quick tip for success. Ensure you have accurate databases of record. Make sure emails are up to date. Make sure your phone numbers are up to date and your unit records are up to date. It saves us time but more importantly it saves you time because those owners are going to contact you and asked why didn't I receive my item. Or why was it sent to a different email. So accurate database records. Keep it up to date.
Rod: Wonderful. Thank you so much. So folks this is it for us. We went just slightly over 6:00. My apologies for that. Apologies also for the technical issues that we've been having throughout. Hopefully we'll be able to sort this out next time around. This was episode 21. Our next meeting on March 3rd, Wednesday again. The information will be posted on CondoAdvisor. The top right corner, webinar, if you click on that you'll be able to see to register. You'll see the topic. You'll see the speakers and so that's where we'll put all the information. Thank you so much for those who stuck around until almost 7 past 6. Thank you to all the speakers. We'll get to see you next month, everybody. Have a great evening. Wash your hands, wear a mask and let's keep on the good fight. Thank you. Good night, everybody.