Even with the best of planning, resolutions presented at general meetings can sometimes require amendments to be made to them; either due to an error, oversight or the wishes of those present at the meeting. However, making amendments can be tricky and if not done properly can result in a resolution that is ultimately set aside if challenged.
Whether a resolution can be amended depends on two things:
(a) the nature of the resolution (majority, vote, ¾ vote, 80% vote or unanimous); and
(b) the nature of the proposed change.
S.45(3) of the Strata Property Act (SPA) requires that “the proposed wording of any resolution requiring a 3/4 vote, 80% vote or unanimous vote” be included in the Notice of Meeting. The absence of such a requirement in relation to a majority vote resolution gives much latitude with regard to the final form of the resolution. It implies there are no restrictions on amending such a resolution. This means that any majority vote resolution, including the Operating Budget, can be amended without restriction or limitation – other than compliance with SPA.
¾ vote resolutions can be amended provided the requirements of s.50(2) of the SPA are met; namely that any proposed amendments:
(a) do not substantially change the resolution, and
(b) are approved by a 3/4 vote before the vote on the resolution.
What constitutes a substantial change was considered in Thiessen v. Strata Plan KAS2162, 2010 BCSC 464 where the court described acceptable amendments as ones that are “technical and relatively minor” in their nature. In The Owners, Strata Plan VR2702 (Re), 2018 BCSC 390 the court gave further guidance to what is a substantial change:
[28]… In s. 50 of the Act the legislation draws a different kind of distinction – i.e., one that is concerned with the relative importance of the change in the context of the resolution as a whole.
[29] It is possible for an amendment to be one of “substance” (i.e., as opposed to procedure) but still “technical and relatively minor” so that it does not “substantially change” the resolution and thereby violate s. 50. That is indeed precisely what occurred in Thiessen. At para. 17, Beames J. described the impugned amendment in issue before her as being “an amendment of substance” that was nevertheless “technical and relatively minor” so as to be capable of being made without violating s. 50(2) of the Act.
In Re VR2702 an amendment to include missing valuations in a winding up resolution was considered “technical”. In other words, it did not change the nature of the resolution. Based on the court’s comments, where the amendment alters the context of the resolution (i.e. a wholesale change in a scope of a project; a bylaw which now allows something it would have otherwise disallowed) it would be substantial.
Although the SPA is silent with respect to amending 80% vote resolutions, the court in Re R2702 applied s.50(2) to a resolution requiring approval by 80%. Since unanimous votes require the approval of all strata lots, there is presumably no problem with an amendment which is approved by all owners.
The proper method for making an amendment is for the amendment to be moved and seconded. There can then be debate on the amendment itself. A vote (using the same threshold which applies to the resolution itself) is then taken on the amendment. If the amendment is approved, then it is the amended resolution which is voted on. There are no limits on the number of amendments which can be proposed or made; although the chair should consider if successive resolutions now amount to a substantial change. One change may be ok, but several in a row may not.
Whenever a motion to amend is made the chair will need to carefully consider which requirements apply and whether the motion is in order (i.e. permitted). The vote will then need to be conducted and the results recorded in the minutes.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
