Informal decision making

We are often asked by our clients how they can make decision making happen faster. Most of the time, the council is not meeting regularly and are responding to a complaint that the council not making decisions validly or are not acting transparently. Often, the council have historically reached consensus by email, and usually ratify the email decisions in the minutes of the next meeting. Although this process may have technically aligned with the minimum standard set out in Kayne v. The Owners, Strata Plan LMS 2374, 2007 BCSC 1610, the Civil Resolution Tribunal has since clarified in Cassey v. The Owners, Strata Plan VR326, 2023 BCCRT 645 that matters decided by email are not valid and cannot be acted upon until they are voted on at a meeting. Effectively, decisions cannot be made or acted up on by email without appropriate delegation of authority in place.

Efficient decision making between regular meetings

considering decisions outside of duly called and minuted meetings are invalid

Introduction

Decisions by a strata council must generally be made during properly convened council meetings and approved by a majority vote of council members present, as stipulated by the Strata Property Act and the strata corporation bylaws. However, there are exceptions for emergency situations.

In this article we will review:

Emergency Situations: The strata council can make decisions outside of council meetings, including by email, if there are reasonable grounds to believe that an immediate decision is necessary to ensure safety or prevent significant loss or damage. This is in line with section 98(3) of the Strata Property Act (SPA).
Email Decisions: While it may be convenient for strata council members to make decisions via email, these decisions must be ratified at a properly convened and minuted council meeting before they can be acted upon, unless they pertain to an emergency.
Electronic Meetings: The strata’s bylaws may allow for electronic meetings (a meeting held by electronic means) if all participants can communicate simultaneously, such as through telephone or video conference. However, if the bylaws do not permit such meetings, decisions made electronically must still be ratified in a formal council meeting. Consensus by email is not the same as an electronic meeting.
Delegate Authority: The strata’s bylaws may allow the council to delegate power or authority to a person. Generally, the council may delegate its spending powers or duties, but only by a resolution that delegates the authority to make an expenditure of a specific amount for a specific purpose, or delegates the general authority to make expenditures in accordance with subsection to a maximum amount that may be spent.

In summary, while emergency decisions can be made outside of council meetings, non-emergency decisions made via email or other informal methods must be ratified at a formal council meeting before they can be acted upon. Delegating authority to one or more people to make decisions may formally permit a person to exercise decisions between meetings, but council should be cautious before delegating authority without clear limitations, reporting, and accountability requirements.

Email Decisions versus Email Meetings

decisions are made at meetings

An email decision typically involves council members discussing and voting on a matter via email. This process is less formal and does not constitute a formal meeting. Email decisions may lack transparency because they do not allow for real-time observation or participation by other owners.

A meeting held by email is a more structured and formal process where the council conducts a meeting through email communication. This type of meeting must be properly called, minuted, and follow the same procedural rules as an in-person meeting.

For a meeting held by email to be valid, the strata’s bylaws must permit such meetings, and all participants must be able to communicate* with each other, similar to a teleconference or videoconference.

Decisions made during a meeting held by email are considered formal decisions of the council and do not require further ratification, provided the meeting was properly called, minuted, and conducted according to the bylaws.

In summary, while both methods involve decision-making via email, an email decision is an informal process that requires later ratification, whereas a meeting held by email is a formal process that must adhere to specific procedural rules and does not require subsequent ratification if conducted properly.

Short meetings between regular meetings

minor decisions or to make decisions more quickly

There is nothing preventing council from calling and holding short meetings between the regular meetings. For example, a short meeting may be called to ratify matters agreed to by email so that those matters may be acted upon sooner than the next regular meeting.

Frequent but short meetings may be an effective way of making decisions swiftly that would otherwise be invalid if only made by email.

It is important that these short meetings are properly called, minuted, and conducted according to the bylaws. However, if the agenda for these meetings are for one or two items, preparing minutes and other procedural tasks should not be onerous.

It should be noted that discussion is typically more productive at a meeting. While everyone may be able to communicate with each other by email, during a meeting the discussion is less disjointed and you can hear tone of voice, read body language, and otherwise give context that the written word may miss. So, calling a short meeting to finalize discussion and make a quick decision on a matter that was originally raised by email is often the most effective way to validly finalize matter.

Calling council meetings on one week notice

the standard method of calling a meeting

To call a council meeting, any council member may give the other council members at least one week’s notice, specifying the reason for calling the meeting. The notice does not have to be in writing. Notice requirements may be different depending on the strata bylaws. Be sure to check if your bylaws are different from the Standard Bylaws.

Calling council meetings on short notice

emergency meetings and meetings on short notice by consensus

To call a meeting on short notice, you need to follow these steps:

Consent from Council Members: Ensure that all council members consent in advance to holding the meeting on short notice. This is crucial as the usual one-week notice period can be waived if all members agree.
Emergency Situations: If the meeting is required to deal with an emergency, you must make reasonable attempts to contact all council members. If they are unavailable to provide consent, the meeting can still proceed.
Notification: Inform the council members about the meeting and specify the reason for calling it. Although the notice does not have to be in writing, it is good practice to document the communication.
Inform Owners: Once the meeting has been called, inform the owners about it as soon as feasible.

Here is a sample email template to call a meeting on short notice:

Subject: Urgent Council Meeting Notification

Dear Council Members,

Due to [specific reason or emergency], we need to convene a council meeting on short notice.

Proposed Meeting Details:

– Date: [Insert Date]
– Time: [Insert Time]
– Mode: [Instructions for attending the by electronic means]

Please confirm your availability and consent to hold this meeting on short notice. Your prompt response is appreciated to ensure we can address this matter urgently.

Thank you for your cooperation.

Make sure to follow up with a confirmation once all members have consented and proceed with informing the owners as soon as possible.

Delegating authority

Permit a person to make decisions or spend money, with limitations

To delegate authority to a council member to make decisions outside of a council meeting, you need to follow specific guidelines as outlined in the relevant bylaws. Here are the steps you should take:

Review Relevant Bylaws: If the strata’s bylaws do not currently permit decisions to be made outside of council meetings, you may need to amend the bylaws to allow for such delegation. This could include creating a process for email meetings or other forms of electronic communication where council members and other participants can communicate with each other.
Council Resolution: The council must pass a resolution to delegate specific powers or duties. This resolution should clearly state the authority being delegated, the specific amount for a specific purpose, or the general authority to make expenditures.
Emergency Situations: For emergency situations, the strata council may make decisions outside of a council meeting, including by email, if there are reasonable grounds to believe that an immediate decision is necessary to ensure safety or prevent significant loss or damage.
Documentation: Ensure that all decisions made outside of council meetings are properly documented. If the decision was made under properly delegated authority, the decision does not need to be ratified, subject to any conditions that were set by the council when the authority was delegated.

Here is a sample resolution for delegating authority:

Resolution to Delegate Authority

Whereas the council of [Strata Corporation Name] recognizes the need for timely decision-making in certain situations,

Be it resolved that the council hereby delegates the authority to [Council Member’s Name] to make decisions regarding [specific purpose or general authority] up to an amount of [$Amount], subject to the following conditions:

The delegated authority is to be exercised only in situations where an immediate decision is necessary to ensure safety or prevent significant loss or damage.
All decisions made under this delegated authority must be documented and reported to the council at the next council meeting.
This delegation of authority is effective immediately and will remain in effect until [specific date or condition for termination].

When drafting a resolution to delegate authority to a council member, it is wise to include specific conditions to ensure clarity, accountability, and proper governance. Here are some key conditions that council should consider including in a resolution delegating authority:

Scope of Authority: Clearly define the specific powers and duties being delegated. Specify any limitations on the authority, such as the types of decisions that can be made.
Purpose: State the purpose for which the authority is being delegated. Indicate the goals or objectives that the delegation aims to achieve.
Duration: Set a time frame for the delegation, including a start and end date. Specify if the delegation is temporary or ongoing.
Financial Limits: Establish a maximum amount that can be spent under the delegated authority. Indicate the purposes for which the money may be spent.
Reporting Requirements: Require regular reporting to the council on actions taken under the delegated authority. Specify the format and frequency of these reports.
Conditions for Use: Outline any specific conditions or circumstances under which the delegated authority can be exercised. Include any necessary approvals or consultations that must occur before decisions are made.
Accountability and Oversight: Detail the accountability measures in place to monitor the use of the delegated authority. Specify any oversight mechanisms, such as periodic reviews or audits.
Revocation Clause: Include a clause that allows the council to revoke the delegation at any time.
Specify the process for revoking the delegation.
Compliance with Bylaws and Regulations: Ensure that the delegation complies with the strata corporation’s bylaws and any relevant regulations. Include a statement that the delegated authority must be exercised in accordance with these rules.
Conflict of Interest: Address any potential conflicts of interest and require disclosure of such conflicts.
Include provisions for abstaining from decisions where a conflict of interest exists.
Bylaw Enforcement: Under the Standard Bylaws, the council may not delegate its powers to determine whether a person has contravened a bylaw or rule whether a person should be fined or denied access to a recreational facility (the essential decisions). However, the council may delegate authority to determine whether a notice should be delivered to inform an owner or tenant that a complaint was received and that they have the right to answer the complaint, including the right to request a hearing before the council makes essential decisions about the complaint.

By including these conditions, the resolution will provide clear guidelines for the delegated council member, ensuring that their actions are transparent, accountable, and in line with the council’s objectives and legal requirements.

Make sure to adjust the resolution to fit the specific needs and circumstances of your strata corporation. Keep in mind that if the impetus to delegating authority is to allow decisions to be made faster, short meetings may be more effective and less complicated that attempting to draft a resolution delegating authority that does not introduce new or different concerns.