What are the requirements for sending out Notices to Owners under the Condominium Act?
Section 47(4)(c) and (5)(c) of the Condominium Act, 1998 (the “Act”) permits corporations to serve “any notice that is required” under the Act on owners and mortgagees by electronic means. However, in order to serve required notices electronically, the following requirements must be satisfied:
The Board has passed a resolution setting out that the Corporation will use email as the method of electronic communication for the purposes of the Act (or other form of electronic communication, if applicable);
There must be an agreement from the owner (or mortgagee), in writing, which includes:
a statement setting out that the Corporation may use email (or other form, if applicable) for the purpose of sending notices under the Act, and
a statement that the owner (or mortgagee) agrees they are sufficiently served, as described in Section 54 of the Act, by email from the Corporation (or other form, if applicable).
If you have an agreement from an owner to receive notices electronically but your Board has not passed a resolution setting out that the Corporation will use email to send notices to owners, the resolution should be completed as soon as possible to ensure that the requirements of the Act are satisfied.
Notices During COVID-19 State of Emergency
On May 12, 2020, the Ontario legislature approved “Bill 190, COVID-19 Response and Reforms to Modernize Ontario Act, 2020.” Under Bill 190, corporations may serve all notices relating to meetings electronically (i.e. preliminary notices and notices), even without any agreement from the owner or resolution of the Board.
The amendments to the Act under Bill 190 will last for the duration of the declared emergency, which has recently been extended to June 2, 2020, plus an extra 120 day “temporary suspension period” (and perhaps a further period) following the end of the declared emergency.
If you plan on sending notices with respect to anything other than meetings during the emergency period (think: budgets, information certificates, new proposed rules or by-laws, notice of lien, Section 23, 24, or 97 notices, compliance letters, etc), the Corporation must still comply with the requirements of the Act before sending the notice by email.
Not all communications from the Board are “notices” under the Act. Right now and after the emergency period, other non-mandatory communications from the board (updates, newsletters, etc.) may be sent by email, as they are not considered “notices” under the Act. Similarly, sending an information-only copy of a required notice by email is permissible even where an owner has not agreed to electronic delivery, as long as the owner has also been send a hard copy of the notice and hasn’t explicitly requested that the corporation not send electronic communications. Sometimes an information-only copy may be desirable to expedite delivery, even where it would not constitute proper notice under the Act.