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Board Elections

This page is about electing directors to your board. It explains when to call for an election, how to nominate a candidate, the voting process, and which directors do not need to be elected to sit on the board. It also discusses issues you may have to deal with when holding elections and ensuring fair election processes.

Nominating candidates

Ontario’s Not-for-Profit Corporations Act (ONCA) says nonprofits can decide on their own nomination and voting process.

It also says that members who control 5% of the votes in a nonprofit have the right to nominate a director.

No. ONCA says you do not need to have a nominating committee, but you can have one if you want.

ONCA does not say how the board recruitment process should take place.

The board can decide on any nomination and election process as long as it’s fair to all candidates and voting members, and it’s run honestly.

Yes. ONCA lets nonprofits decide their election process, including how they publish names of individuals or slates of candidates, or give notice about upcoming elections. A slate of candidates means a group of candidates that a member votes for together.

But all candidates should be treated fairly. This means any policy or process to do with nominating candidates must be applied to every candidate equally and fairly.

ONCA lets nonprofits decide the process of voting for directors as long as it follows what the nonprofit’s bylaws say. This means nonprofits can let members vote for directors individually or by slate as long as the process is fair and follows their bylaws.

To vote by slate means you vote for a group of candidates together.

Yes. Unless your articles or bylaws say something else, ONCA says there is no limit to the number of terms a director can serve. A director can run for office and serve any number of terms.

No, the director position cannot be shared. A director must be an individual.

By default, every director gets one vote in board meetings unless your articles or bylaws says something else. For example, your articles or bylaws may give certain board positions more than one vote.

If you do not have enough directors for a quorum or if a minimum number of directors have not been elected, the directors currently in office have to call a special members’ meeting as soon as possible. The purpose of the meeting is to hold a special election (ONCA section 28(2)).

If the directors do not call a meeting, any member can call for one.

Timing of elections

Board elections usually take place at annual members’ meetings. But the timing also depends on:

  • what your bylaws say about when director terms end
  • when vacancies happen on the board

There are different rules about how to fill a vacancy on the board. The way you fill a vacancy depends on how the vacancy was created. For example, if it was created because a director resigned, died, or was removed from office. Members may also call for a special members’ meeting to remove a director. If the director is removed, the members may elect another director to replace them at that meeting.

If there is a vacancy on the board because the members did not elect a full slate of directors at the last members’ meeting, then the currently sitting directors may appoint up to one-third the number of directors that were elected at the last members meeting. The articles or bylaws may say the board does not have this power. For example, if a nonprofit has 10 seats on its board and the members only filled 6 of them at the last members’ meeting, as long as those 6 make up a quorum, they may appoint up to 2 more directors.

ONCA says a nonprofit can decide on any term of office it wants for a board director up to 4 years. Your nonprofit’s bylaws may say how long a director’s term lasts.

If your bylaws say nothing about director terms, then the default is that directors hold office until the next annual members’ meeting. This meeting is also known as an annual general meeting (AGM) (sections 24(1) and (4)).

The AGM must be held within 15 months of the last annual members’ meeting and 6 months of the end of your fiscal year (section 52(1)(b), 83(1)).

When a director resigns, dies, or is removed from office, new directors can be appointed to fill the vacancy created on the board. The new director will complete the term of the director being replaced.

If the board loses quorum because of a vacancy on the board, then the remaining directors must call a members’ meeting immediately to elect new directors.

Unless a director resigns, if a nonprofit would be left with no board, the current directors continue to hold office until the new directors are elected.

No.

Voting for directors

You can elect directors individually or by slate of electors. To vote by slate means you vote for a group of candidates together. You have a single resolution to elect all the candidates on that slate. However, any member entitled to vote at the meeting can ask to vote on candidates individually.

Your governing documents, such as bylaws or policies, may say how your elections are run. If your bylaws do not include an election process, then the process is decided at the meeting.

Once nominated, candidates must get at least 50%+1 of the votes cast at a members’ meeting to be elected.

Some nonprofits have multiple classes of members who each have the power to elect a number of directors. If a class of members has this power, then a director only needs 50%+1 of the votes cast by members from that class. Or, they have to be elected unanimously by written resolution of that class outside of a members’ meeting.

After the election, if your directors change, you must file a Notice of Change.

No. Acclamation happens when the number of candidates standing for election is less than or equal to the number of directors to be elected. That means the candidates have nobody running against them.

Even if one or more candidates are running unopposed, each one still needs to be voted in by a majority of the members in a members’ meeting.

Nonprofits are allowed to hold board and members’ meetings virtually, unless their articles or bylaws say that they cannot.

There are special instructions that need to be included in the notice of meeting if the meeting is going to be held virtually. For example, the notice must include the call in or log in information for the meeting, and instructions about how voting will take place.

Yes. Voting can be anonymous. If your bylaws do not include an anonymous voting process, then you can decide on an anonymous voting process at the meeting.

If your bylaws do not say anything and you do not decide on an anonymous process at the meeting, then by default voting happens through a show of hands.

Yes, but only if your articles or bylaws allow voting by proxy (s.64).

ONCA says that members must write down who their proxy will be, and deliver these to the nonprofit by a deadline set by the board. If the board does not set a deadline, then the deadline is 24 hours before the meeting. Your articles or bylaws can say that proxyholders must be members of the nonprofit.

A proxy can be prepared by the board or by members.

A proxy form prepared by a member must follow Part VI of the ONCA. The proxy form must clearly say:

  • which meeting it is being used for
  • if the proxyholder has been suggested or named by the nonprofit
  • what powers the proxyholder has

Members have the power to cancel or revoke their proxies. They can do this by sending written notice to the registered address of the nonprofit (s. 65(6) and (7)) until the day before the meeting.

ONCA does not say a candidate for election as a director has the right to present their case or say why members should vote for them. But you can create this right in your bylaws.

Yes. Current directors can vote to fill vacancies on the board as long as the current directors have quorum, unless their bylaws or articles say they cannot.

Directors can elect other directors if the nonprofit’s members do not elect enough directors at the annual general election (AGM).

Directors can appoint directors between annual meetings up to 1/3 of the number of directors elected at the last AGM (s.24(7)). For example, let’s say members elected 9 directors at the last AGM. The directors can appoint up to 3 directors before the next AGM.

These appointed directors only hold office until the next AGM. Then, if those directors are not elected by the members, they stop being directors.

When a director stops being a director because they resigned, died, or is no longer qualified, the other directors may appoint someone to fill that vacancy. They can do this as long as the board still has quorum (s.28).

A director appointed to fill a vacancy serves out the remainder of the term of the director being replaced.

If the directors do not have quorum, they must immediately call a special meeting of members so the members can elect a director to fill the vacancy. A board cannot function unless it has quorum.

Yes.
If the nonprofit’s articles has a fixed number of directors, the only way to add more directors is by following the process to file articles of amendment to increase the number of directors.

If the nonprofit’s articles has a range of directors then the members can pass a special resolution at a members’ meeting to increase the number of directors. But they cannot add more directors than the maximum number given in the articles. Then, at the same meeting, the members can elect the new directors. ONCA (s.22(2)).

The members can also give the directors the power to fix the number of directors within the range provided for in the articles by passing a special resolution.

Fair election process

Directors must be elected by the nonprofit’s members. Some nonprofits have a membership structure where their only members are their directors. This is sometimes called a “self-perpetuating board”. This structure is allowed under ONCA.

Even though the directors and members are the same people, these nonprofits still have to hold separate members’ meetings from board meetings. They also have to elect their directors at an annual meeting of members.

The nonprofit’s articles or by-laws will say what the director’s term is.

An election may be invalid if the nonprofit did not inform the following groups about the meeting to hold an election:

  • all its members who have the right to vote, and the right to get notice of the meeting,
  • its directors, and
  • its auditor or financial reviewer.

Unless your bylaws or articles say something else, nobody else needs to be informed and there’s no need to inform the general public.

If a person who had the right to get notice, did not get it, the meeting may not be valid. The person who was not notified can go to the Superior Court of Ontario and challenge the validity of the meeting and its results. They can request that another meeting be held.

If a member was not properly informed about the meeting but they go to the meeting, they waive their right to be informed about the meeting unless they attended the meeting only to contest the meeting. They cannot challenge the results of the meeting on the basis that they were not properly informed about it unless they protest.

ONCA does not say that nonprofits must run elections through an election committee. But nonprofits are free to have one. The election committee can be ad hoc, which means you can set one up as you like. Or your bylaws may have a fixed process to create and run an election committee.

Yes. If the people in these positions are voting members, then they can, unless your articles or bylaws say they cannot.

ONCA does not have any rules about whether the chair or members of an election committee can vote.

ONCA does not say they cannot do this, but it may not be good practice. Members have the right to go to court to settle questions about whether an election was valid. Members can challenge the fairness of a process in which one of the candidates was in charge of the election.

Members can request supervised recounts, but ONCA only says that they have a right to demand that “the ballot be taken” (s.58(2)). This means that if the vote happened by a show of hands, these votes must instead be written down and counted. ONCA does not say members have the right for a recount or that the voting be “supervised.” If a ballot is demanded, the results of the vote should also be recorded in the minutes (s.38).

Yes. You can allow members to inspect the ballots in your bylaws. Although ONCA only mentions an auditor’s right to inspect ballots, it does not say that members do not have that right.

If your bylaws do not say whether a member can inspect a ballot then it is up to the members at the meeting to decide this.

ONCA does not have specific rules about influencing elections, but you can decide what types of behaviour and actions are acceptable for your nonprofit. For example, your nonprofit’s bylaws can allow candidates to email the membership in support of their campaign. But not allow them to call members.

Your nonprofit can set up disciplinary committees and can expel or discipline members if they do not follow your nonprofit’s policies, bylaws, codes of conduct, or for other reasons listed in the bylaws.

Calling elections

Your current board of directors is responsible for calling elections when:

  • board terms end, or
  • the board has fallen below a quorum of directors.

If the board does not do so, or if an acting director does not call a meeting to elect a board, then any member may call a meeting for an election (s.28(2)).

Sometimes, the terms of all board directors end before a new board is elected. In this situation, the previous board remains in place and calls a meeting of the members to elect the new board (s.24(5)).

If all the directors resign or are removed at the same time, then the person who manages or supervises the management of the nonprofit’s activities is considered a director (s.29(1)). This person must call a members’ meeting to elect a new board.

If members do not elect a new board, then the person acting as the board must call another members’ meeting as soon as possible (s.28(2)). If this person does not call a meeting to elect a board, then any member can do so (s.28(2)).

ONCA says members vote for directors who sit on the board. Members do not elect directors to specific board positions unless your articles or bylaws allow them to.

Members vote on officer positions such as president, secretary, or treasurer, only if your bylaws allow it. If they do not allow it, the board decides on officer positions (Section 42).

Ex officio directors are not voted in by the members. They get their position because of some other office they hold. For example, the clergy in a religious organization may be made an ex officio director and so whoever holds the clergy position may automatically be on the board.

After elections

After an election you have to tell the Ontario government when there have been changes to your directors or officers. You have to file a Notice of Change within 15 days of the change.
Sometimes the only change that happens in one year is that directors are elected at the annual members’ meeting (AGM) and new officers are appointed by the directors at the first meeting after the AGM.
You also have to file an annual return each year. You must do this within 6 months after the financial year ends.
You can file the annual return and the notice of change on the same form if the election of directors and appointment of officers happens at the time you have to file the annual return.

ONCA says all decisions your directors make are valid even if they were not elected correctly. (s.37). They are considered “de facto directors” based on the actions they take for the nonprofit. This means they are considered to be directors even if they were not elected properly.

The law says they’re still responsible for the interests of the nonprofit in the same way that a director who was properly elected is.

No, if a director has not been elected properly, filing a notice of change does not change the fact that they were not elected properly.

Yes, but only if the person can prove that the board behaved unfairly in serious ways that affected the person negatively. In these situations, the person can file a legal complaint in court.

No. No one has the right to be voted in as director. So, no one has the right to know the reasons why they were not voted in. Members can elect or not elect anyone they choose as directors, and they do not have to give reasons for their vote.


Directors who do not need to be elected

Some nonprofits have governing documents that say people in certain positions or jobs automatically become directors because of a position they hold. For example, a community centre may say the municipal councillor for that ward is automatically a director of the community centre. This person is called an “ex-officio” director.

No. Ex-officio directors are not elected and their appointment does not need to be approved by members.

Ex-officio directors automatically serve as directors as a result of their office. There is no limit to how long they can serve.

No. Members cannot vote to remove an ex-officio director the way they remove elected directors.

An ex-officio director can be removed in one of 2 ways only:
(1) the person is removed from the office or position which allows them to be a director, or
(2) the ex-officio position is removed from the nonprofit’s governing documents.

Yes. Ex-officio directors have the same rights as other directors unless your bylaws or articles say otherwise.


Learn more about what ONCA says about member meetings.

Reviewed: 2024-07-03