Proxy Requirements Under ONCA

The Ontario Not-for-Profit Corporations Act (the “Act”) was proclaimed on October 19, 2021, and it is generally applicable to every Ontario not-for-profit corporation.

The Act permits not-for-profit corporations to allow its members to appoint a proxyholder; provided that this right is in the corporation’s Articles or By-laws.

Proxy voting allows a member who cannot, or does not want to, attend a members’ meeting to appoint an individual to attend for and act on the member’s behalf at such meeting.

As not-for-profit corporations transition under the Act and prepare for members’ meetings, proxy requirements under the Act should be carefully reviewed.  In addition to this, a thorough review of the corporation’s Articles and By-laws is necessary.

Form of Proxies

The Act provides that every proxy must be in a form that complies with its regulations.

Ontario Regulation 395/21: GENERAL (the “Regulation”), enacted under the Act describes the form of proxies.

If a not-for-profit corporation permits voting by proxy in its Articles or By-laws, it may provide members with a form of proxy. If a corporation allows for voting by proxy, but it does not circulate a form of proxy, a member can execute their own form of proxy.

Proxies Created by Corporations

The form of proxy created by a corporation must:

1. indicate the meeting that the proxy is valid for in bold typed text;
2. indicate that a member may appoint a proxyholder, other than a person listed in the form of proxy, to attend for and act on the member’s behalf at the meeting, and have instructions regarding the manner in which the member may do so in bold typed text;
3. if the proxy designates a person as the proxyholder, it should provide a means for the member to designate a different person as proxyholder;
4. provide a means for the member to specify that their membership is to be voted for or against the matters identified in the notice of meeting (other than the appointment and remuneration of an auditor or person to conduct a review engagement of the corporation, and the election of directors). Note: A proxy may include a statement that the member confers authority for matters which a choice is not provided if it provides how the proxyholder is to vote the membership in respect of each matter or group of related matters in bold typed text;
5. provide a means for the member to specify that their membership is to be voted or withheld from voting regarding the appointment and remuneration of an auditor or person to conduct a review engagement, or the election of directors;
6. indicate that the membership is to be voted or withheld from voting, according to the instructions of the member, on any ballot that may be called at the meeting, and that if the member provided a choice for (4) or (5), the membership is to be voted accordingly; and
7. include a space for a signature and the date of the signature.

Proxies Created by Members

The form of proxy created by a member must:

1. indicate the meeting that the proxy is valid for;
2. indicate whether the proxy is solicited by or on behalf of management of the corporation; and
3. indicate the powers under the proxy.

A proxy that confers discretionary authority for amendments to matters in the notice of meeting or matters that may come before the meeting shall contain a statement to this effect.

A proxy is deemed to have been dated when it is sent if not dated.

For more information about proxies or transitioning under the Act, contact our Business Law lawyers. To learn more about the transition process, please contact us online or by telephone at (416) 863-0125.

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