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.
Board of Directors
The board of directors expresses itself by the adoption of resolutions in one of the following ways:
A written resolution, signed by all directors, has the same effect as if it had been adopted at a meeting of the board of directors duly convened and held. This resolution must be filed in the minute book of the board of directors, in the same manner as regular minutes. A syndicate will thus be able to keep the proof of the decision and of its exact content. Keep in mind that such resolutions do not take effect until the date of the last signature.
General meeting of the co-owners
The expression of the vote of the co-owners can be collected in writing, without a general meeting of co-owners being held. Article 354 of the Civil Code of Québec states as a condition for the validity of a written resolution that it be signed "by all the persons qualified to vote". Thus, a co-owner whose voting rights are suspended does not have to sign the written resolution in order for it to be valid. In addition, when a co-owner has assigned his voting rights, for example to his hypothecary creditor, or if he has mandated a third party (mandatary) to exercise them (e.g. by virtue of a power of attorney), it will be up to the latter to sign the written resolution. In addition, it should be noted that a written resolution only concerns a decision to be made by the general meeting of the co-owners. This resolution does not replace the holding of the annual general meeting of the co-owners, which must duly be held (articles 1087 and following of the Civil Code of Québec).
Formalism
The resolution must be signed by all persons qualified to vote. Does this mean that everyone must agree with a resolution proposed? In other words, does it have to be unanimous? Since this interpretation of the Law has never been validated by a court, caution must be exercised. It is advisable to write in the declaration of co-ownership that the written resolutions are valid, even if some directors or co-owners disagree, provided that the resolution obtains the required majorities.
Transmission
Articles 1086.1 and 1102.1, introduced into the Civil Code of Quebec in December 2019, by Bill 16 state, respectively, that the board of directors must transmit to the co-owners any resolution in writing adopted by the board or by the meeting of co-owners, within 30 days of adoption. These articles must be read in conjunction with articles 1086.2 of the Civil Code of Quebec and 1103 of the Civil Code of Quebec, which provide a legal proceeding for co-owners to annul or amend a decision of the board of directors or the meeting of co-owners.
WHAT YOU SHOULD KNOW ! A written resolution must be signed by all members of the board of directors. If one of the directors expresses his dissent with the resolution, he will have to write it on the resolution itself. Thus, his dissent with the decision taken by the board of directors will be officially recorded, in order to exempt him from any liability that may arise therefrom,if any (article 337 of the Civil Code of Québec).
WHAT TO KEEP IN MIND : The second paragraph of article 354 of the Civil Code of Québec provides that "a copy of the resolutions is kept with the minutes of proceedings or the equivalent". Thus, any written resolution must be recorded in the minute book, in the same way as regular minutes.
WARNING ! The text of the written resolution must be clear and unequivocal. It cannot be in the form of a question or a mere opinion. It must be the evidence of a decision taken. Putting one's signature at the end of an unclear text is more a matter of opinion polling than a firm intention to adopt a resolution. You should keep in mind that an unduly vague text could be of no legal effect.
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