An e-voting gaffe, a three-way tie and condo election chaos

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An error attributed to an electronic voting platform for condominium corporations has unleashed chaos at a Toronto-area townhouse complex and is raising questions about the rules governing condominium election disputes.

“Right now we feel like a coup’s been staged,” said Susan Flynn, who ran for a seat on the board of Peel Condominium Corporation No. 76 (PCC 76), and was announced as one of the winners at the condo’s May 29, 2023, annual general meeting. Since then she has been excluded from board business and discussion with little explanation as to why or whether it was legal for the condo corporation to do so.

She has written to everyone she can think of – her mayor, provincial ministries, the Condominium Authority of Ontario (CAO) and the Condominium Management Regulatory Authority of Ontario – and when she does get a response it’s typically been suggested that she get a lawyer. “You gotta wonder why people take things into their own hands,” said Sue’s husband Rob Flynn. “There’s no will in the government to fix this, to make any changes.”

In 2017, Ontario set up the CAO with a mandate to create a tribunal to help take condominium disputes out of the province’s civil courts, and in 2018 the Condo Authority Tribunal (CAT) began issuing its first rulings. Its mandate was expanded in 2022 to handle more disputes around things such as noise complaints and pet odour, but on a critical question of an election result being either suspicious or wrong, the CAT currently has no jurisdiction. That means the only remedy for Mrs. Flynn was to take her condo to civil court, an expensive and time-consuming process.

What the owners and directors of PCC 76 didn’t know (in some cases for days or months afterwards) was that there was an error in either the vote count or the presentation of those results by the AGM’s chair Shawn Machado of Maple Ridge Community Management Ltd. The meeting ended with Mr. Machado congratulating Mrs. Flynn and another candidate Steve Musni on their election to the board, mentioning they had tied for the final two positions.

Within 24 hours of the termination of the AGM, the electronic voting platform GetQuorum notified the condo management company that a serious error had been made on election night by its own moderator: according to its final voting report Mr. Musni and Mrs. Flynn had not been in a two-way tie, but in a three-way tie with long-time board president Debbie Draper who was seeking re-election.

GetQuorum apologized for its mistake in a June 13 letter and offered its e-voting services for the next election for free.

In the normal course of events a tie might result in the chairperson conducting a runoff election during the same meeting between those who tied. With the meeting already over, the condo board had a problem with no easy answer.

Mrs. Flynn received a congratulatory e-mail on May 30 from Maple Ridge manager Ahmad Muhammed, and despite not getting invited to a schedule meet and greet on June 1 for the new board she continued on as if things were in motion, even completing her mandated CAO director training.

“Nobody got back to me, nobody would talk to me,” she said. Then, she heard from fellow newly elected board member Lorraine Mercer that the advice from the condo corporation’s lawyer was not to recognize her or Mr. Musni’s election and to have a special runoff election.

It wasn’t until July 6 that Mrs. Flynn finally got an e-mailed answer from PCC 76′s lawyer, Tony Bui, an associate with Gardiner Miller Arnold LLP, about why she should not consider herself a duly elected board member. “Notwithstanding that the AGM closed, it would be unreasonable to conclude that ‘Steve and Sue were elected to the Board at the AGM’ in the face of a three-way tie,” Mr. Bui wrote. However, according to Ms. Mercer, no vote was ever taken to remove Mr. Musni or Mrs. Flynn, leaving open a critical question: On whose authority are they being barred from participating in board business?

There are some precedents similar to what happened with the botched vote at PCC 76.

In 2014, in the case of YCC No. 42 v. Gosal et al, questions raised about a condo election after an AGM was closed led to the chairperson taking it on themselves to “decertify” the results in the days that followed. The judge’s ruling in that case slapped down those actions firmly: “Once the chair makes a declaration as to the result of the vote, it is final and binding unless otherwise reversed by the court. … He also had no authority to reverse the declared results and purport to decertify the election results, and advise that [two directors] were no longer on the Board of Directors of YCC 42.”

Mr. Bui did not respond to questions about why this precedent wouldn’t apply to Mrs. Flynn’s case.

The law on this point has been made clear in subsequent rulings, according to Bradley Chaplick, a partner with Horlick Levitt Di Lella LLP and team leader of the condominium law practice group.

“There’s no do-overs, you don’t get to try again,” said Mr. Chaplick. “This actually happened to me but it wasn’t a tie it was a miscount. … I was the lawyer in a real case that I lost.”

That case was the 2018 matter of York Region Condominium Corporation No. 818 v. Przysuski, which further cemented the precedent that a court is the venue to interpret the fallout and a judge is not bound to automatically void the vote after the fact.

In Mrs. Flynn’s case, there has been no court order reversing her election win, nor has there even been a decision – legal or not – by the board of PCC 76 to remove her or Mr. Musni.

The Flynn’s are not alone in feeling they have little recourse: there are many condo owners reluctant to scale the high barriers to Ontario’s overburdened and expensive civil court system in the hope of obtaining relief.

“It kind of feels very unfair that you as an owner have to retain a lawyer to deal with basic and mundane issues, and it’s unfair because your opponent [the condo corporation] has access to everyone else’s money to defend them,” said Rodrigue Escayola, who is both a condo owner and a partner in Gowling WLG specializing in condominium law.

The final twist in Mrs. Flynn’s case is that while she questions why she’s not been treated like a board member, on Aug. 9 Maple Ridge’s Mr. Muhammed announced in a letter to owners that one of the three “uncontested” board members had resigned, which he asserted deprived the board of quorum.

In Ontario, a condo board without quorum has 30 days to get its house in order or else any owner in the corporation can call for a special meeting to fill a vacancy. In the Aug. 9 letter, Mr. Muhammed indicated that Debbie Draper – of the three-way tie – had requested such a meeting to be held on Aug. 30.

“That’s definitely not correct, because you still have four directors,” said Mr. Chaplick. “The board hasn’t lost quorum, and now you’re going to have more elections that are going to further muddy the waters?”

On Tuesday, following inquiries from The Globe and Mail, all the elected members of the condo board received an e-mail from Mr. Bui reversing his earlier advice and affirming that Mrs. Flynn and Mr. Musni should be properly considered elected board members based on the May 29 AGM. He further asserted the Aug. 30 meeting was now a “legal nullity” since the board had never lost quorum, though he suggested the board could use the opportunity to hold an election for the one remaining open seat. He also offered to attend and explain “the debacle with the three-way tie.”

“Even if the process is horrifically flawed and confusing and upsetting … the nice thing about condo meetings is there’s another vote next year,” said Mr. Chaplick.