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.
Unlike the situation prevailing at the general meeting of the co-owners, the Civil Code of Québec does not provide any specific rule regarding quorum determination. It is the By-laws of the immovable which establishes the rules relating to the operation of the board of directors and, thus, those relating to the quorum.
Quorum in number
Since the law does not set a minimum quorum threshold, its provisions are left to the declarant’s discretion. The general meeting of the co-owners may subsequently amend the declaration of co-ownership to specify other rules.
Although a single director may constitute a quorum, in practice it is formed by the majority of the members of the board of directors. For example, if the board of directors comprises five directors, the quorum will be three.
The director’s office is a function entrusted in a personal capacity. A proxy cannot be given by a member of the board of directors to act on his behalf at a meeting. Thus, a director cannot give the power to one of his colleagues or to a co-owner to act in his place and stead and thereby allow the quorum to be reached.
At the opening of the meeting, it is up to the president of the board of directors to ensure, inter alia, that the quorum in the by-laws of the immovable is attained. If quorum is reached at the time the meeting is convened, or before the expiry of the grace period set in the declaration of co-ownership (e.g. within 30 minutes of the stated time for the start of the meeting ), it can be held . The board of directors will thus be able to take, validly, any decision relative to a question on the agenda. However, if the meeting of the Board cannot begin for lack of a quorum, the secretary shall draw up minutes to that effect and indicate the time of adjournment and the names of the directors who have made themselves available, on the spot or otherwise.
The quorum must be maintained throughout the duration of the meeting. A loss of quorum may occur following the departure of one or more directors. The president of the board of directors will have to adjourn the meeting immediately and a new notice of meeting will need to be sent to each member. The minutes will indicate the time of the adjournment and the names of the members of the board of directors present.
In principle, if a quorum has not been reached, the Board of Directors cannot deliberate and take decisions. But there is an exception to this rule in the event that a quorum can no longer be reached due, in particular, to the resignation of a certain number of directors. Therefore, those who remain can validly convene the co-owners for the holding of a meeting of co-owners, even if their number is less than a quorum.
It is not uncommon for some directors to be unable to be present on site to participate in meetings of the Board of Directors. Article 1084.1 of the Civil Code of Québec, introduced by Bill 103 in December 2021, now provides that directors will be able to participate in a meeting of the board of directors using means that allow all participants to communicate immediately with each other. The directors who participate in such a meeting may vote at it by any means that allows both to collect the votes so that they can be subsequently verified and to preserve the secrecy of the vote, when such a vote is requested. Thus, the physical presence of the directors at the meeting is no longer necessarily required to reach a quorum.
WHAT YOU SHOULD KNOW! The rules to satisfy quorum to hold a meeting of the board of directors are different from the rules governing general meetings of the co-owners. It is the by-laws of the immovable that determine them.
WHAT TO KEEP IN MIND: Article 1084.1 of the Civil Code of Quebec grants directors the right to hold virtual meetings of the board of directors using a means that allows them to communicate immediately with each other. This type of virtual meeting is valid as long as the technology can ensure, if required, the holding of a secret ballot and that the votes can be verified subsequently.
WARNING! The loss of quorum at a meeting of the board of directors does not affect the validity of the decisions made prior to that determination, but renders the adoption of any other resolution impossible. Thus, any decision adopted without the required quorum may be annulled.