The Canada Not-for-profit Corporations CNCA ("CNCA") entitles members of a corporation who hold at least 5% of the votes that may be cast at a meeting of members sought to be held (or such lower proportion as is set out in the by-laws or, less commonly, the articles) to requisition the meeting to be held. A requisition allows the threshold proportion of members to force the corporation to hold the meeting. It is an alternative to a member applying to for a court-ordered meeting of members. Indeed, members should always consider a member-requisitioned meeting before seeking a court-ordered meeting, as the courts strongly favour members exhausting their internal remedies before seeking judicial intervention in the affairs of the corporation.
Absentee voting refers to any permitted system whereby a member of a corporation can vote at a meeting of members, even though the member is not present in person at the meeting. Historically, voting by proxy was the only permitted form of absentee voting. However, as a result of advances in communications technology, modern corporate legislation has embraced new methods of absentee voting, while retaining older methods.
The Canada Not-for-profit Corporations Act ("CNCA") makes an important distinction between:
The Canada Not-for-profit Corporations Act ("CNCA") permits any director or any member entitled to vote at a meeting of members (or the Director appointed under the CNCA) to apply to the court for an order that a meeting of members be called, held and conducted in such manner as the court directs.
A corporation must give notice of the time and place of a meeting of members to each of its members entitled to vote at the meeting. The regulations under the Canada Not-for-profit Corporations Act ("Act") prescribe certain permitted methods set out in the following table.
In Trow v. Toronto Humane Society (decided 2001), the Ontario Superior Court of Justice set aside by-laws purportedly passed at a meeting of members on the grounds that the notice for the meeting was materially misleading.
In Samra v. Guru Nanak Gurdwara Society (decided 2008), the British Columbia Court of Appeal set aside attempts by three separate factions to stack the membership rolls in preparation for a vote for the election of the board of a religious institution that operated a Sikh temple in Surrey, British Columbia.
In Jacobs v. Ontario Medical Association. (released August 2016), Justice Perell of the Ontario Court of Justice used a scalpel to cut through the various demands of a dissident group of members of the Ontario Medical Association, finding merit only in the OMA's form of proxy and making adjustments to the proxy to address the court's concerns.
In his 2014 decision in Hunjan v. Singh, Justice Sproat of the Ontario Superior Court of Justice wisely points out that often too much time, effort and expense is devoted to fighting over the validity of meetings of members and the validity of elections. The time, effort and resources are generally better spent on building a solid foundation for future meetings and elections, rather than contesting results of the past.
In Lee v. Lee's Benevolent Assn. of Ontario (decided in 2004), Justice Nordheimer of the Ontario Superior Court of Justice stated, in the context of a disputed election of directors at a meeting of members of a not-for-profit (NFP) corporation incorporated under the Ontario Corporations Act, that NFP organizations should not be required to adhere rigorously to all of the technical requirements of corporate procedure for their meetings, so long as the basic process is fair. On appeal, the Ontario Divisional Court affirmed the trial court's decision but neither embraced or refuted Justice Nordheimer's statement about the standard applicable to meetings of NFP organizations.