- Voting : Secret ballot
Definition : Voting - Secret ballot
Voting system used at a general meeting of the co-owners or a meeting of the board of directors, in which participants are asked to answer anonymously a question put to the vote. The Civil Code of Quebec states that the vote of the members is by a show of hands or, on request, by secret ballot. Oddly, the decision-making process at a general meeting of the co-owners does not allow for a secret ballot, in the absolute sense of the term. Article 1090 of the Civil Code of Québec stipulates the following: "Each co-owner shall have at the general meeting a number of votes proportional to the relative value of his fraction". Thus, the ballot must necessarily indicate the number of votes attached to the fraction of the co-owner.
Question: In a recently held general assembly, the chairman handed out post-it notes and asked the owners to write their unit number along with 5 members of their choice to the board of directors. ( CA comprises 5 members). This is the first time I've seen anything like this happen. Usually, the owners will vote only for those candidates they consider suitable to hold a position on the board, whether they may be one or whatever number up to 5. But not necessarily 5 in this case. is the chairman's action acceptable? If not, can we ask for a new vote be taken by secret ballot.
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The COVID-19 health crisis and its procession of government restrictions to limit gatherings have often made it impossible to regroup. The legislator was forced to organize the rescue of legal persons, banned from assemblies, to preserve, at least for a time, their functioning. The syndicates of co-owners have thus adopted alternatives to face-to-face meetings of co-owners. Social distancing obliges, COVID-19 has given rise to a phenomenon in co-ownership: virtual meetings of co-owners, also called remote meetings. In order to perpetuate this way of doing things, the law now authorizes syndicates of co-owners to hold meetings by technological means.
The board of directors occupies an important function in co-ownership governance. It holds meetings as often as the interest of the collectivity of co-owners require and addresses any matter that concerns the syndicate’s good management. These meetings are moderated by a president who ensures their efficient conduct. Directors can debate and reflect upon the orientations to give to their co-ownership. The more carefully and methodically the meetings are prepared, the more motivated and interested the members will be to participate thereto. Moreover, precise rules must be followed imperatively, otherwise the decisions taken could be invalidated.
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.
Co-owners must make decisions that are essential for the life of their co-ownership, which cannot be adopted by the board of directors without their consent. To this end, the meeting of co-owners brings together the co-owners or their representatives, at least once a year. In this context, the taking of these decisions is subject to a strict framework. Meetings of co-owners make decisions by taking a vote. Any proposal submitted for adoption must be voted on to become a resolution. Without being exhaustive, two voting procedures are set out in article 351 of the Civil Code of Quebec: a show of hands or, upon request, a secret ballot. The choice is predicated upon competing objectives of simplicity or confidentiality in the decision making process.
The provisions related to the appointment and replacement of the directors are provided for in the By-laws of the immovable (2nd part of the declaration of co-ownership). In their absence, they are also found in the Civil Code of Quebec (C.C.Q.). The law thus leaves it to the co-owners to establish themselves, in their declaration of co-ownership, the rules that best suit them. However, the appointment of directors generally falls within the competence of the general meeting of co‑owners, although the declaration of co-ownership may provide for other provisions.