Canada: Amending Bylaws By Ordinary Resolution: When Is A Conflict A Conflict?

I have been contacted by several condominium corporations regarding amending their bylaws to bring them into compliance with recent changes to Alberta's condominium legislation. Along with the changes introduced in 2019 and 2020, the Legislature provided condominium corporations with the ability to amend bylaws that conflict with the revised legislation by way of an ordinary resolution:

Ordinarily, condominium bylaws can only be amended, repealed or replaced by special resolution, which requires obtaining the approval of at least 75% of all persons eligible to vote, whose collective votes represent at least 7,500 unit factors. An ordinary resolution, by contrast, is a simple majority (more than 50%). Further, if conducted at a general meeting, an ordinary resolution is based on the number of persons in attendance, physically or by proxy, rather than the total number of persons eligible to vote. In that case, it does not depend on unit factors either.

For many years, the Condominium Property Act has contained the provision shown in section 34.1(1) above. If there is a conflict between any bylaw and the Act or regulations, the latter prevails to the extent of the conflict. The grandfathering provisions in subsections (2) and (3) were added when the legislation was amended on January 1, 2020, giving condominium corporations until December 31, 2020, to make amendments to address conflicts by passing an ordinary resolution.

Crucially, there must be an actual or “true” conflict for a condominium corporation to make use of this special, limited-time-only ability. A true conflict is when a provision in the bylaws cannot coexist with a provision in the Act or regulations. It may not be as obvious as one provision mandating an action that the other forbids, though that is one example of a true conflict. Essentially, it must be impossible to comply with a provision in the bylaws without violating some provision in the Act or regulations.

An example of a true conflict is the notice requirements for general meetings. Condominium bylaws often contain shorter notice requirements, typically as few as seven days, whereas the Act expressly requires providing at least fourteen days notice. By providing only the minimum notice in the bylaws, the Act would be violated. Another example is voting rights. Many bylaws include exceptions for mortgagees to retain their voting rights when a unit owner is in arrears for payment of monthly assessments for common expenses for more than 30 days before the vote occurs. This is in clear violation of the legislation, which provides that neither the owner nor the mortgagee may exercise the power of voting in these circumstances.

Given that the Act already contains an express provision to address bylaws in true conflict, I have not advised using the grandfathering provision. It is a time-consuming and unnecessary expense for condominium corporations since the Act or regulations will prevail in an actual conflict. However, if a corporation wishes to proceed using the ordinary resolution power in section 34.1(2) above, then according to subsection (3), it must limit the amendments to addressing only true conflicts. No matter how minor (such as correcting spelling errors or updating terminology), any other changes still require a special resolution to be approved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.