Definition : Board of directors - Resolution

Question: Can a meeting of co-owners take a regular decision despite the abstention of many co-owners present? How should these absentees be dealt with (a vote for or against)?  And what about non-voting on a decision of the members of the board of directors? Answer: Abstaining is a matter of concern in any democracy. Co-ownership is no exception to this reality. This question concerns both directors and co-owners: what about the scope of an abstention during a vote? However, the consequences are different, depending on whether it is the meeting of the co-owners or of the board of directors. In a meeting of co-owners, abstentionist co-owners are counted with the votes against, while for a meeting of the board of directors, non-voting directors are not taken into account (they have not "expressed themselves").  

At a meeting of the board of directors, directors must not make any decision that is biased, or with the intention of harming the co-owners (or any of them) or disregarding their rights. In case of defect, the co-owners (or a director) can now take legal proceedings to oppose decisions taken by the ​Board of directors. Article 1086.2 of the Civil Code of Quebec, which came into force on January 10, 2020, allows the court to set aside or, exceptionally, to correct a decision of the board of directors. The proceedings must be initiated within 90 days of the decision of the board of directors. In order to promote stability of the Board’s decisions, the legislator allows to bring such recourses only in certain circumstances.

It is possible to make a decision without having a meeting. Article 354 of the Civil Code of Québec recognizes the value of a written resolution: "Resolutions in writing signed by all the persons qualified to vote at a meeting are as valid as if passed at a meeting of the board of directors, at a general meeting or at a meeting of any other organ”. Co-owners and directors may make a decision by the means of a resolution in writing, without any general meeting of the board of directors or meeting of co-owners being held as such. This mechanism is provided by law, when it is not essential for a meeting or a general meeting to be convened, since the salient points of the subject to be discussed have already been dealt with, to everyone’s satisfaction. This is to avoid cumbersome formalism, although written resolutions should be used with caution and parsimony.

Decisions taken by directors must be recorded and recorded in the minutes. This document is essential for a co-ownership, because it ensures the written preservation of the deliberations of the board of directors, as well as that of  the result of each vote, so that any co-owner and director can refer to it over time. It also shows that the meeting of the board of directors was held properly. As such, it must be as detailed and clear as possible, without repeating everything that was said at the meeting. Personal assessments and quotations should not appear in the minutes of the Board of Directors. In view of its importance, this document must respect a certain formalism.  

In order for the board of directors to validly deliberate and make decisions, the declarations of co-ownership generally provide that a minimum number of directors must participate to the meeting. This requirement is called the quorum. Unless the board of directors is composed of a single director, the quorum at a meeting of the board of directors is generally set by the By-laws of the immovable by a majority of the current directors. Recall that the quorum is defined in order to ensure the representativeness and authority of the board of directors. It avoids decision-making by a limited number of directors. Therefore, it must be checked at each board meeting.

A meeting of the board of directors can hardly take place without an agenda. In order to deliberate, the directors must be made aware, before the meeting, of the questions on the agenda. This is why it must be attached to the notice of meeting, usually prepared by the president of the board of directors. It contains all the questions that will be submitted to the deliberations of the meeting. This document must be specific and unequivocal in order to ensure the smooth conduct of the meeting.