In April 2021, I posted an update about extended flexibility for corporate meetings due to COVID restrictions and regulatory amendments. Many provinces have made permanent legislative changes, but others are still extending ‘temporary’ measures. Here’s the fall 2021 edition of our cross-country AGM check up!
Bill 53, Service Alberta Statutes (Virtual Meetings) Amendment Act, 2021 updates other acts, including the Societies Act, so organizations can meet and vote online. Unless the organization’s bylaws, articles or other governing documents expressly provide otherwise, the Societies Act now permits attendance at directors’ meetings or AGMs by electronic means. The entirety of the meetings can be held electronically, electronic notice is sufficient, and voting can take place electronically. The changes came into effect 26 March 2021 and are retroactive to 15 August 2020.
BC has updated legislation to permanently allow societies, cooperative associations and companies the option of holding fully virtual meetings. The Finance Statutes Amendment Act (No. 2), 2021 amended the Societies Act so that:
- Electronic meetings (full or partial) are allowed (ss 76, 77)
- Concepts of location or presence are replaced with the concept of attendance (so long as it also allows participation) (ss 76, 77, 82(4), 83)
- Method of voting is still governed by bylaws and means of voting must be authorized in the bylaws (ss 11(1), 83, 84(5), (6))
It’s important to know that the default permission for members to participate in an electronic meeting does not apply if the bylaws provide otherwise (s 83(1)). For more on how the amendments have been applied by BC courts, see CCCC Bulletin (Sept 2021) QuickPicks, p 6.
The September 2021 Order is identical to the March 2021 Order. It allows for electronic attendance at a meeting if the means permit everyone to adequately communicate with each other during the meeting and it applies “even if such means are not permitted or are specifically excluded by the incorporated body’s by-laws” (see s 7(2) of the Order).
If a notice of meeting has already been given and it is later changed, information about the change must be provided within a reasonable time via email and (where applicable) posting it to the corporation’s website, but a revised notice of meeting is not otherwise required. Voting can take place electronically so long as the board of directors takes “reasonable measures to ensure” that voter identity is verified and each person who votes does so only in their own right or by a valid proxy.
There are similar provisions for Directors’ meetings.
The Order is effective October 1, 2021 – March 31, 2022, unless revoked sooner.
Among other legislative provisions, the Order suspends and replaces portions of The Cooperatives Act (ss 201(1), (2), 222(7), (8), s 224, ss 236(3), 379(1), (2)), the Cooperatives Regulation Man Reg 95/99 (s 11.3), and The Corporations Act (ss 109(9), 126(4), s 126.1, ss 127(a), s 135).
There are no specific orders or directives related to the Corporate Registry of Service New Brunswick that speak to meeting delays or flexibility. Non-profits and charities operate under the Companies Act, which provides that all provisions of the Act apply to every non-profit corporation.
What to do? Check your by-laws to know how your corporate meetings are to take place. If your by-laws are silent, s 94 of the Act directs how elections should take place.
Section 94.2 of the act allows for directors to participate in director meetings or committee meetings by phone or “other communication facilities” if the by-laws provide for it or, subject to the by-laws, all the directors consent to that format.
Similarly, section 103.2 allows for attendance at member meetings by phone or “other communication facilities” that allow everyone participating to hear each other if the by-laws provide for it or all members entitled to vote consent to that format.
Newfoundland & Labrador
Bill 51, An Act to Amend the Condominium Act, 2009, the Co-Operatives Act and the Corporations Act, was introduced and passed in November 2020.
The Bill made permanent changes to those acts that allow director meetings, committee meetings, and member meetings to be held by telephone or electronic means. Similarly, voting can be entirely by phone or electronic means. Participants need to be able to clearly hear each other, be able to communicate, and where necessary, allow for anonymous voting.
The permission is subject to the corporation’s bylaws and whether they provide otherwise. The permission is also conditional on all directors consenting (for director and committee meetings), and on approval of the corporation (for member meetings).
Permanent flexibility for electronic and hybrid meetings means that the June 2020 permission to delay AGMs has not been renewed.
A Ministerial Direction prohibits societies and other corporate bodies from holding any statutorily required meetings in person if gathering restrictions or other applicable conditions cannot be met.
In place of in-person meetings, the Direction permits virtual and hybrid meetings whether or not virtual meetings are otherwise allowed or provided for in an enactment, article, bylaw or governing agreement.
Other requirements for the meetings should be met, such as quorum, record, notice; participants must be able to adequately communicate with one another.
It applies to societies incorporated under the Societies Act as well as all other societies or corporate bodies, incorporated by or under provincial laws or otherwise.
Alternatively, meetings can be deferred without penalty for a period of up to 90 days after the last date of the declared state of emergency. Where a meeting is deferred, everyone entitled to be present at the meeting must be notified in advance of the meeting date as required by applicable law, article, bylaw. If no notice period is stated, it must be no less than 7 calendar days.
This directive is in place for the duration of the State of Emergency (unless terminated earlier by the Minister of Municipal Affairs and Housing). The State of Emergency has been extended more than 40 times, most recently until October 31, 2021.
The Northwest Territories has no specific orders or directives related to the Societies Act that speak to meeting delays or flexibility.
What to do? Check your by-laws to know how your corporate meetings are to take place. Unless your bylaws state otherwise, section 16.1 of the Act allows for a member to attend an AGM by phone or other mode of communication if everyone can hear each other.
Nunavut has no specific orders or directives related to the Societies Act that speak to meeting delays or flexibility.
What to do? Check your by-laws to know how your corporate meetings are to take place. Section 5 of the Act requires that a society’s by-laws set out the mode of general meetings and section 17 of the Act requires that the AGM be held in Nunavut. The Act is otherwise silent on how societies are to hold the meeting.
The ability to hold electronic corporate meetings has been extended to September 30, 2022.
Corporations under the following acts can continue holding virtual meetings until September 30, 2022:
- Not-for-Profit Corporations Act, 2010
- Business Corporations Act
- Co-operative Corporations Act
- Condominium Act, 1998
- Corporations Act
This means that despite provisions in a corporation’s letters patent, supplementary letters patent or by-laws of a corporation that provide otherwise, member, board and board committee meetings can be held electronically until September 30, 2022.
If you have questions about the extension of the effective period of the temporary legislative provisions related to virtual meetings, you can contact the government directly at OnCondo@ontario.ca and BusinessLawPolicy@ontario.ca.
For more from Ontario, visit COVID-19 changes to meetings and business operations.
Prince Edward Island
Prince Edward Island has no specific orders or directives related to the Companies Act that speak to meeting delays or flexibility. Charities operate under Part II of the Companies Act as well as applicable sections in other parts of the Act.
Your bylaws should tell you all you need to know about your meetings. To be granted letters patent for a non-profit company, a petition must accompany the application. That petition must include a variety of detailed information including the “mode of holding meetings, provision for quorum, rights of voting…” as per s 90(2)(b). The Act does not speak to digital, telephone, remote or other forms of meetings.
An Order in Council (1313-2021) issued on October 13, 2021 renews the public health emergency along with a laundry list of other Orders in Council and Ministerial Orders.
One of the renewed orders was Ministerial Order (2020-029). This Order allows any meeting of a deliberative body that normally takes place in person to be held by other means so long as everyone can communicate with each other immediately. If a secret ballot would normally be required, it can be held by any means of communication that everyone agrees upon, or alternatively, in a way that preserves the secret nature of the vote and can be verified.
Since November 2019, the Act has allowed meetings by phone, videoconference or other digital means so long as everyone can communicate with each other immediately (ss 89.2-89.4, 224). But this permission in the Act is subject to bylaws of the corporation. So if the bylaws prohibit phone or electronic meetings, the Act isn’t much help.
That’s why Order 2020-029 was necessary. It essentially overrides any bylaw or other corporate provisions that would prohibit alternate meeting options. Since the public health emergency has been continually renewed since it was declared March 13, 2020 it is almost certain the Order will also continue to be renewed, extending the option for virtual meetings.
In Saskatchewan, the Non-profit Corporations Regulations, 1997 were amended by Order in Council to authorize non-profit corporations to hold member meetings by phone or electronic means, so long as the articles or bylaws do not prohibit it and participants are able to adequately communicate with one another. It was effective as of February 26, 2021.
The Non-profit Corporations Act requires that member meetings “shall be held at the place within Saskatchewan provided in the bylaws” (see s.122). The Order amends the definition of “held at the place” by adding a definition to s.13 of the Act to remove the geographic restriction.
This amendment updates a previous change, made in May 2020, by adding clarifying language and specifying that people who attend virtually are deemed to be present at the meeting.
Depending on the type of organization, a Ministerial Order issued March 2, 2021 relating to AGMs may still be effective. It applies for a “designated period.”
- For associations and societies, that is 90 days after the end of the state of emergency
- For corporations and limited partnerships, that is 30 days after the end of the state of emergency
The state of emergency ended August 25, 2021. That means the 30 days for corporations and limited partnerships has passed, and the 90 days for associations and societies will end November 23, 2021.
The Order allows AGMs to be partially or entirely by phone or electronic means. It’s allowed even if the bylaws don’t provide for the meeting, and whether the directors have chosen to hold an electronic meeting or if a member calls such a meeting. The Order allows all members to attend, participate, and where applicable, vote all by electronic means. Similarly, directors’ meetings can be held electronically. These meetings are deemed to have been held in Yukon and participants are considered to be present.
The Ministerial Order allowing for electronic meetings is retroactive to any time in the designated period, or before the state of emergency was declared (March 27, 2020). You can read more about the Yukon’s legislation changes for COVID-19 here.
Corporations Canada outlines three options for charities to consider:
- Virtual AGM
For virtual meetings, you need to check your by-laws to see what they allow. If the bylaw specifically allows virtual meetings, great! You can hold a fully virtual meeting. If the bylaw is silent or doesn’t permit virtual meetings, you can consider a partially virtual meeting. Some attend in person and other participate virtually as long as everyone can communicate.
In terms of voting, again, check your bylaws. Participants can vote digitally if it’s not prohibited and the voting platform complies with regulations (i.e. maintain anonymity).
- Resolution Instead of AGM
Practically, this is probably only an option for corporations with a small membership. The resolution must, at minimum include (1) director elections, (2) financial statements, (3) appointing the auditor or waiving such appointment. All other business items normally communicated at the AGM must also be included.
- Delay Calling the AGM
If it would be detrimental to call the AGM within the normal timeframe, non-for-profit corporations can apply to delay the AGM. You need to apply at least 30 business days before the notice to members has to be sent. Corporations Canada has a page with all the information you need on how to apply for an extension.
For more, check out this article on Holding a Successful AGM.
Noteworthy is provided for general information purposes and does not constitute legal or professional advice. Every organization’s circumstances are unique. Before acting on the basis of information contained in this blog, readers should consult with a qualified lawyer for advice specific to their situation.