Below is a discussion on proxies. On some brousers there are "Y"'s scattered
about the text. I would rather leave the Text untouched at this time.
I do not see how Reeve Tom Flynn can be viewed as neutral. He has a clear record with respect to his votes on the matters at hand.
As Gary would say, I too am not a Lawyer, but it is not clear to me how proxies circulated in parallel with with clearly biased (one sided) emotional, rather than factual information can be consider constitutionally or ethically acceptable. It is further unclear to me how the proxies and the language constituting the question(s) to be voted on by the proxy can be prepared and distributed by anyone other the Corporation. Normally the actions solicited by proxies bind a corporation and its directors and officers. It is unclear to me how the officers and directors of the corporation can be bound (and therefore take on personal liability) for an obligation in which they had no say in defining.
Finally there is no way to audit the process. Typically the corporation acts as the "neutral" gatherer of votes, allowing those voting by proxy to be equally comfortable voting either way. Clearly that is not the case here as the distributor of the proxy has a clearly expressed view and a motivation ("I want a road to my property") that has only been selectively disclosed and only then upon significant probing. Without the ability to audit the process and truly ensure that all proxies are fairly and accurately reflected the process cannot have any meaningful validity.
Finally, I have tried to stay out of this, but as I have watched this
process unfold I am truly shocked and disappointed. The entire purpose
of the Saturday meeting has been undermined firstly by thinly vailed threats
to sue people if they don't vote in favour of certain opinions, and secondly
by grossly distorted misinformation which is largely based on emotion rather
than facts. If the facts are out there lets see them without conjecture
and emotional misrepresentation, so that all the cottagers who have a collective
interest in what is best for the lake can make educated and unbiased decisions.
Oh wasn't that the original purpose of the meeting ...
Peter van der Velden
Ivan: Our board met on Thursday night by phone to discuss the meeting this coming Saturday and some other outstanding issues.
Two directors brought forth the fact that "Proxy Votes" are not in the Catchacoma Cottagers' Association Bylaws. It was also pointed out that under Item 5 of the by-laws Quote..."The interest of a member in the Association is not transferable and lapses and ceases to exist upon his/her death or when he/she ceases to be a member by resignation or otherwise in accordance with the by-laws of the Association."
To accept proxy votes requires a change in the by-laws. The process
is Quote..."Proposed changes shall be presented to the Executive Committee
for discussion. Recommended changes shall be included in the Association
mailing prior to the Annual General Meeting or Special Meeting. Recommended
changes shall be submitted to the membership for approval at either the
Annual General Meeting or a Special Meeting. Quorum as required"
Quote....Under Item #17 of the By-laws -Notice of meeting is mailed or delivered at least 21 days prior to the meeting.
This AGM is in recess and the agenda was approved at the beginning of the AGM meeting. No formal request was made to the executive committee to amend the by-laws. Therefore "Proxy Votes" will not be accepted for the meeting on October 12th.
We realize that you and your family and others around Bottle Creek have special concerns and issues. I've communicated what we think may be some of those concerns to the MNR. We are asking questions and hopefully if we get some answers prior to the meeting, we'll definitely forward them to you.
You did request a copy of the constitution. I don't have it electronically but if I can fax it somewhere then give me the fax number. Or, I'll mail it tomorrow. I was going to do this last Friday but our offices were evacuated (gas leak downtown) and everything was left there until today.
Point of Information. Upon completion of our agenda at the annual AGM meeting the Information meeting will commence. Upon completion of the MNR presentations and the Question and Answer period by members, the meeting will then be open to entertain motions and this would be deemed a special meeting of the membership.
Gary B. Faulkner
_____________________________________________________________________________________________ P.O. Box 214
I have just reviewed the message below from Wendy Lyttle. I am certainly no lawyer but I suggest we should consider Sections 133 and 84 from Parts III and II of the Corporations Act, respectively, regarding the issue of proxies.
Part III of the Corporations Act seems to deal with corporations having no share capital, such as the Catchacoma Cottagers’ Association, and Part II deals with "companies" which do have share capital.
However, Section 133 in Part III specifies that certain Sections in Part II also apply to "corporations without share capital". For your perusal I have copied Section 133 from Part III and Section 84 from Part II, below.
Application of Part II provisions to Part III corporations
133. (1) Section 22, clauses 23 (1) (a) to (p) and (s) to (v), subsection 23 (2), sections 59 to 61, 67, 69 to 71, 80 to 82, 84, 93 and 94, subsection 95 (1), sections 96 and 96.1, clauses 97 (1) (a), (c) and (d), subsection 97 (3) and section 113 apply with necessary modifications to corporations to which this Part applies, and in so applying them the words "company" and "private company" mean "corporation" and the word "shareholder" means "member". R.S.O. 1990, c. C.38, s. 133 (1); 1994, c. 27, s. 78 (7); 1998, c. 18, Sched. E, s. 69 (1).:
Section 84 from Part II of the Corporations Act reads as follows:
84. (1) Every shareholder, including a shareholder that is a corporation, entitled to vote at a meeting of shareholders may by means of a proxy appoint a person, who need not be a shareholder, as the shareholder's nominee to attend and act at the meeting in the manner, to the extent and with the power conferred by the proxy.
Execution and termination
(2) A proxy shall be executed by the shareholder or the shareholder's attorney authorized in writing or, if the shareholder is a corporation, under its corporate seal or by an officer or attorney thereof duly authorized, and ceases to be valid one year from its date.
(3) In addition to the requirements, where applicable, of section 88, a proxy shall contain the date thereof and the appointment and name of the nominee and may contain a revocation of a former proxy and restrictions, limitations or instructions as to the manner in which the shares in respect of which the proxy is given are to be voted or that may be necessary to comply with the laws of any jurisdiction in which the shares of the company are listed on a stock exchange or a restriction or limitation as to the number of shares in respect of which the proxy is given.
(4) In addition to revocation in any other manner permitted by law, a proxy may be revoked by instrument in writing executed by the shareholder or by the shareholder's attorney authorized in writing or, if the shareholder is a corporation, under its corporate seal or by an officer or attorney thereof duly authorized, and deposited either at the head office of the company at any time up to and including the last business day preceding the day of the meeting, or any adjournment thereof, at which the proxy is to be used or with the chair of such meeting on the day of the meeting, or adjournment thereof, and upon either of such deposits the proxy is revoked.
Time limit for deposit
(5) The directors may by resolution fix a time not exceeding forty-eight hours, excluding Saturdays and holidays, preceding any meeting or adjourned meeting of shareholders before which time proxies to be used at that meeting must be deposited with the company or an agent thereof, and any period of time so fixed shall be specified in the notice calling the meeting or in the information circular relating thereto. R.S.O. 1990, c. C.38, s. 84.
It seems possible that the Corporations Act may take precedence over the By-law of the CCA, especially since the CCA By-law does not address the issues of proxies. I am guessing that the Corporations Act provides for proxies in our situation.
I am certain that there are readers much more knowledgeable than I am regarding this issue, and I look forward to receiving their comments, whether I am right or I am wrong.
I refer you to sections 117, 129(1) (I), 133, and 84 of the Corporations Act.
The Members of the Corporation are entitled, by means of a proxy, to appoint a person as their nominee to attend, act and vote for them at a members meeting.
Section 5 of the bylaws quoted by you in your response to Ivan, as the rational for disallowing the proxy vote, simply restates section 128 of the Corporations Act. Section 128 prevents memberships in non-share capital corporations from being transferred like "shares" in a for profit corporation. This is a very different issue than allowing a member the right to appoint a proxy which sections 133 and 84 explicitly permits. The granting of a proxy does not result in the transfer of the member's interest. It simply permits a member to exercise his\her membership rights when he\she can not attend in person. Besides from a statutory interpretation perspective, your interpretation would render section 133 and 84 redundant. Courts do not give interpretations that render statutory provisions (e.g. the granting of members the right to vote by proxy) meaningless.
The bylaws are silent on the issue of proxies. The CCA directors could have passed bylaws providing guidance on how proxies are used or passed a resolution relating to "Timelimits" for deposits with the CCA, but they have not. Accordingly any member who complies with section 84 should be able to appoint a proxy. An interpretation that the CCA's bylaw's silence on the issue means that proxies are not allowed is not a correct interpretation as it would stand for the proposition that a corporation could defeat\override statutory provisions by simply not addressing the provisions in the bylaws. Such an interpretation is wrong and very much against public policy.
Relevant to the CCA' s board's decision to attempt to deny members their explicit statutory right to vote by proxy, is the board's refusal to provide me with the information I had previously requested pursuant to the following sections ( all of which were provided to you) of the Corporations Act 305 (1) (minutes of the previous 5 yrs members meetings)**, 306 & 307 (list of members with addresses) . I advised why I wanted this information including the possibility of requisitioning either the circulation of motions (section 296) or a meeting ( section 295) of the members if the board did not confirm that they would provide the members an opportunity to vote on the final recommendations of the LSC. You finally agreed to provide me with the minutes this past weekend but you've yet to provide me with the members addresses.
I find it very concerning that the Board blatantly ignores their clear
statutory obligations when it serves your purposes (e.g. deny members rights)
and that you then have the audacity to try and make a technical interpretation
of the bylaws to deny members their rights. It is my opinion that any interpretation
relating to members rights, whether it be under the Act or the bylaws,
should be interpreted in a manner that is favourable to the members not
restrictive. In an era where corporate accountability has never been more
topical, I find the boards actions to date shocking. I find your statements
that because "No formal request was made to the executive committee to
amend the bylaws" as a justification to not allow proxy votes particularly
offensive because of your refusal to provide myself and others the information
we required, and were statutorily entitled to, to make the requisitions
we deemed appropriate.
The Boards' continued disregard of fundamental statutory rights which are critical to the members being able to bring forward their perspectives, regardless of whether the Board agrees with the perspectives or not, and in ensuring that the members have a mechanism to force the corporation to bring issues to the memberships attention is a clear breach of your statutory obligations. It is such a fundamental breach that the statute actually contemplates specific penalties for non-compliance( eg305(2) & 307(5)).
The Board's position with respect to the proxies is clearly wrong at law. It is also wrong from an associations perspective. The CCA is an association that is suppose to represent it members. Why is the Board trying to deny members their most fundamental right- the right to vote? This is an extremely hard position to defend especially when one considers: that members have voted by proxy in the past, the cottages are not the primary residence of most members, and the meeting is being held on Thanksgiving weekend.
Given the very strong personal opinions you have expressed relating to the buffer zone, and your blatant disregard of the Corporations Act, I suggest that your personal views are preventing you from discharging you fiduciary duties to act in the best interest of the CCA.
With respect to this last point, I do not claim to know what is in the
best interest of the CCA with respect to the Buffer; however, I strongly
submit that arbitrarily denying members their statutory rights: to communicate
with each other; or to review minutes of previous meetings;or to know how
many members are in the corporation in order to comply with the provisions
of the Corporations Act which allow 1/20th of the members to requisition
motions or 1\10 of the members to requisition a meeting of the members,
is definitely not in the best interest of the CCA . The members vote on
this issue will determine what is in the best interest of the CCA.
Corporations Act (Ontario):
<corp act 84-133.doc>>
Here's the link just in case:
I (your name):________________________________________
Note: lot and concession No. Etc. from your cottage tax slip
Residence Phone no:_______________________
Cottage Phone No:_______________________
Being a member of the Catchacoma Cottagers association hereby appoint
to vote for me and on my behalf at the forum and annual general meeting scheduled to be held on or about Oct 12, 2002 and at any rescheduled or adjournment thereof
Your signature: _______________________________________
If you have any questions please contact Ivan Battye at 905 665 1534
or kiddbatt@ osha.igs.net.
Otherwise please fill out the form and designate the person whom you wish to vote for you.
Fax, mail, or deliver this completed form to the appointee of your choice.
If you wish to designate us to Attempt to act for you in support of the buffer option please send form to:
100 Muir Cres.
Whitby Ont. Canada
You can FAX it to us at 905 665 1536.
If you are not currently a member of the Catchacoma Cottagers Association you must sent a cheque for $ 20 .00 Cdn made out to the said association with this form in order to enable your appointee to register you with the association for 1 year.
If you do not wish to become a member of the association we would still appreciate a letter of support which we will try to register at the meeting.