Much has been said and written about the new Condo Forms, which came into force on November 1st, 2017. Some don’t like their look and feel, others have encountered technical challenges with them (to this day, the fillable forms work best with Windows Internet Explorer). At the end of the day, one recurring question we often encounter is whether condo corporations and managers can modify these forms or whether they must use the forms as is. Here are our views on this.
As a starting point, we must differentiate those forms which are “prescribed” and those which are “suggested”. The proxy is a prescribed form, whereas the Electronic consent form is not. Usually, you can tell which form is mandatory (prescribed) and which one is not by the language under the Condo Act. Section 52(4) of the Condo Act deals with the form of a proxy. This section reads as follows:
Appointment of proxy
(4) An instrument appointing a proxy shall be in writing under the hand of the appointer […] shall comply with the regulations and shall be in the prescribed form.
On the other hand, section 47(6) dealing with electronic consent reads as follows:
Agreement to electronic delivery
(6) The agreement [to electronic notification] mentioned in clause (4) (c) or (5) (c) shall be …
(a) in writing and in the prescribed manner; or
(b) in a form, other than writing, if it is in accordance with the regulations, if any.
In our view, any other form of consent to electronic notification is sufficient as long as the agreement from the owner includes the name of the owner and a statement that the owner is sufficiently served as described in section 54 of the Act.
Keep in mind that the legislative clue that a form is prescribed is not only found in the Act. You also have to look at the regulation. For instance, the Information Certificates (PICs, ICUs or NOICs) don’t appear to require a prescribed form under the Act until you read the regulation which indicates that a form is imposed. For instance, on the PIC, section 11.1(7) of the regulation reads:
(7) A periodic information certificate shall be in English or French and shall be in the form that the Minister responsible for the administration of section 26.3 of the Act specifies.
Clear as mud?
Far from attempting to make an exhaustive list of which forms are prescribed and which are not, the following list may help you identify some of the forms which are prescribed:
- The Requisition of owners meeting (s. 46(5) – when this section comes into force)
- The proxy (s. 52(4))
- The table of content of the disclosure statement (s. 72(4))
- The Status Certificate (s. 76(1))
- The notice of budget (s.83.1 – when this section comes into force)
- The PICs, ICUs and NOICs (s. 11.1(7); 11.2(4); 11.3(6) of the Regulations)
- The Preliminary notice of meeting of owners (s 12.2 of the Regulations)
- Notice of meeting of owners (s. 12.8(2)
This list is not necessarily exhaustive. Still, the question remains, are these prescribed forms set in stone or can we change them a bit?
There are conflicting views on whether you can modify a prescribed form. On the one hand, the government has gone to great lengths to develop and impose forms. It also specifically provides that some forms are prescribed and others are not. This would lead one to conclude that those which are prescribed are mandatory and cannot be changed. Still, not everyone is of that view.
This brings us to the Legislation Act, which specifically provides (to some people’s dismay) that even prescribed forms can be (to some extent) modified. Section 84 of the Legislation Act provides that:
Deviations from required form
84 Deviations from a form whose use is required under an Act do not invalidate the form if,
(a) they do not affect the substance and are unlikely to mislead; and
(b) the form is organized in the same or substantially the same way as the form whose use is required.
This section seems to indicate that, whether the form is prescribed or not, they can slightly be modified as long as you don’t affect the substance or risk misleading the reader and as long as the form is substantially organized in the same way as the prescribed form. Keep in mind that, in my view, all that this section does is not invalidate a form on the sole basis that it has been somewhat modified. I don’t read this section as to encourage or expressly authorize such modifications.
So, where do we stand?
In my view, while this gives corporations and managers (and lawyers) some leeway to modify the forms, it is probably best to do so in a very limited way. I for one, would prefer to strike through sections of the forms which do not apply rather than removing such sections. I am also of the view that, for better or for worse, the format of the proxy (with information on the left side and information on the right side to be torn off if required) should not be changed.
What about the Status Certificate? Can we modify it at will? In my view, it is preferable not to. First, every paragraph of the Status Certificate is numbered. Removing a paragraph would change the sequence. Second, the Status Certificate specifically indicates that sections can be struck out and specifically provides for the ability to add sections if applicable. This to me seems to indicate that the intention of the province was to stick to the form.
The forms are not perfect yet. I don’t think anyone expected them to be. This is a first draft and I’m confident that the 2.0 version will be far better. There are some growing pains to be expected.
Still, perfect or not, I am of the view that if the legislation indicates that one is to use the “prescribed form” (or a document in the form that the Minister specifies) it seems to make better sense to me that we stick to the form – even if it means striking out what is not necessary. This would allow everyone to work from the same base line and it would allow for a more consistent approach across the province. … or perhaps it’s just me having spent too many years in the Forces where we had forms for everything.