Last November I posted about extended flexibility for corporate meetings due to COVID restrictions and regulatory amendments. Many of those are being extended (again) or being made permanent. Here’s an updated cross-country corporate check up on AGM options across Canada!
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.
Ministerial Order No. M116 came into effect April 21, 2020 and will remain in effect until the declaration of a state of emergency expires or is cancelled (it was extended until 27 April 2021 and will presumably be renewed again).
This Order allows societies to host virtual or hybrid meetings, even if the society’s bylaws or any regulations under the Societies Act state otherwise.
Additionally, section 71 of the Societies Act provides flexibility for the timing of AGMs. Under s.71(3) the Registrar of Companies extended the date by which a society must hold its AGM. The extension goes no later than November 1 of the calendar year after the calendar year in which an AGM would otherwise have to be held, and which the Registrar authorizes.
The options are helpfully summarized here.
The 2021 Order is identical to the previous 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 March 31, 2021 – September 30, 2021 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 94.1 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 last year’s 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 for the 28th time to May 2, 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.
Corporate Registries has stated that it will “not be dissolving any societies for failing to file their Notice of Directors and financial statements due to a society’s inability to hold an AGM because of the COVID-19 health emergency.”
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 December 31, 2021.
In 2020 a schedule was added to the Corporations Act for “special rules during emergency.” An April 6, 2021 regulation extends the application of these “special rules during emergency” to December 31, 2021.
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 the end of 2021.
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 (570-2021) issued on April 21, 2021 renews the public health emergency along with a lengthy list of other Orders in Council and Ministerial Orders.
One of the renewed orders was Ministerial Orders (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 the 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, it is almost certain it will 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 existing Non-profit Corporations Act requires that member meetings “shall be held at the place within Saskatchewan provided in the bylaws” (see s.122). The changes made in May 2020 had updated the definition of “held at the place” to remove geographic restrictions. The recent amendments add clarifying language and specify that people who attend virtually are deemed to be present at the meeting.
A Ministerial Order (2 March 2021) effectively extends a May 2020 Order.
It allows a society under the Societies Act, an association under the Cooperative Associations Act and a for-profit corporation to hold AGMs 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 order applies for the “designated period” which means the period beginning March 17, 2020 and for societies and associations, ends 90 days after the end of the state of emergency. The state of emergency was renewed for the fourth time on March 3, 2021 for 90 days.
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).
Corporations Canada outlines three options for charities to consider:
1. Virtual AGM
As 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).
2. 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.
3. 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.
Charity leaders are invited to share how they are responding to the COVID-19 challenges within their organization in our online community forum, The Green: COVID-19 Response Room.
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.