We find ourselves in uncharted territory during the COVID-19 pandemic. The Ontario Government declared an emergency under the Emergency Management and Civil Protection Act on March 17, 2020. It is ongoing and will continue, according to a Bill passed today in the Ontario Legislature, until at least May 12.
Hospital AGMs have traditionally been attended by members in person. Recall that the Ontario Government’s current social distancing rules prohibit social gatherings of more than five people. It is definitely possible that our current social distancing limitations will still apply in June.
What does this all mean for holding the hospital’s annual general meeting?
When do we have to hold our hospital’s AGM?
Recall that Ontario’s Public Hospitals Act requires (by regulation) every Ontario public hospital to hold an annual general meeting (AGM) between April 1 and July 31, on a day to be fixed by the Board. Most hospitals have traditionally held their AGMs before the start of summer, sometime in June, and as an in-person meeting.
While the Ontario Government has amended the Corporations Act to allow non-share corporations to extend the time for holding the AGM up to 90 days after the pandemic emergency is declared over by the Ontario Government, the AGM rules under the Public Hospitals Act have not been changed. This may well be an oversight, but the July 31st deadline remains nevertheless. (Update April 27th: The ON Government issued emergency orders on April 24th extending the time for holding AGMs for both cooperative corporations and condominium corporations – but no extension for public hospitals. We will keep our eyes on developments.)
As a result, we recommend that hospital Boards plan to hold their AGM before the July 31st deadline.
What are the logistical options for holding our AGM?
The Corporations Act sets the rules for how (not when) a public hospital AGM is held.
In 2017, the Corporations Act was amended to allow members of non-profit and charitable corporations to attend AGMs electronically – by video or teleconference. The by-laws do not need to be amended to allow this – the by-laws or the letters patent just need not expressly prohibit it.
During the declared pandemic emergency, the Ontario Government has gone even further and amended the Corporations Act to allow electronic attendance and voting at members’ meetings, even if the letters patent or by-laws prohibit it.
Therefore, especially if your hospital membership is closed (e.g., limited to the directors themselves), it is absolutely possible to hold the AGM virtually, i.e., entirely through a phone or videoconference meeting, if all of the members agree. (And if the social distancing rules are then in place, the members must agree to attendance virtually (or by proxy), as the Ontario Government bans social gatherings of more than five people.)
However, if the declared emergency is over when the AGM is held, the corporation cannot require members to attend the AGM electronically – it can only allow and encourage this to happen. Under the Corporations Act, the members are entitled to attend the AGM in person.
What if we cannot hold an entirely virtual AGM before July 31st? Can we delay holding our AGM? What are the considerations? Who should approve a delay?
If the social distancing rules are in place, but a member insists on his/her “right” to attend the AGM in person, that is not a lawful exercise of that member’s right. Exercising a right cannot violate another existing law (the social distancing laws). Therefore, if the social distancing rules are in place, the corporation can offer virtual attendance as the only option for attendance. The member may alternatively submit a proxy instead of any form of attendance.
Delaying holding the AGM beyond the July 31st deadline in the Public Hospitals Act regulations is a violation of the Act that carries with it a fairly small fine – for each person who violates the act, $50 to $1000.
We have worked with a number of non-profit organizations that, for various reasons over the years (some valid and some less so), have not held the AGM within the applicable timeline established by either the Corporations Act or the Public Hospitals Act. We are not aware of any negative consequences resulting from such a delay – i.e., no fines or other Government actions.
Any decision to delay holding the AGM contrary to the Public Hospitals Act should be made by the Board with a well-documented rationale (e.g., the hospital is facing a major decision, such as a merger with another organization and feels the need to hold an in-person AGM/town hall to transparently answer questions and settle concerns before proceeding). The rationale should identify why a virtual meeting will not suffice (e.g., the pandemic is declared over, the hospital has canvassed its members and many wish to attend in person, thereby threatening achievement of quorum.)
Any delay should be transparently communicated to all members in a timely manner, in accordance with the method of notice communication stipulated in the by-laws.
Again, for a hospital that has a closed membership (members = directors), there really is no valid rationale to delay holding the AGM. The AGM can be held electronically in the same way that board meetings are held.
If you have additional questions, please contact Kathy O’Brien (kobrien@ddohealthlaw.com) or Michael Gleeson (mgleeson@ddohealthlaw.com).