Email Voting By Boards

Many non-profits, I know, occasionally rely on votes by their boards solicited by email.  Is this a good idea? When ought it be used? Is it even legal? Curious about the practice I thought I would investigate.

It is widely accepted that non-profits, where a major decision is involved, must enable their boards an opportunity to engage in real deliberation. This means that the directors need to know how each other feels and thinks about the matter before them. They need to hear from one another, consider the pros and cons and share options. Although seldom tested, it widely regarded as a legal principle. But is this the case for all decision matters?

It did not take me long to discover that the relatively new (2021) Ontario Nonprofit Corporations Act (ONCA) does not permit email voting by a board on any matter. Yes, it provides a little wiggle room for boards willing to jump through a legal hoop to conduct such a vote. But such limits on boards who want to employ this tool are not unique to the ONCA. Read on.

Beyond the ONCA, there is some useful governance territory here to consider, and much to my delight, some policy remedies, although perhaps not for non-profits in Canada’s most populous province.¹

A Useful Tool

Making board decisions via email seems an important option. Non-profits need it especially when there is an urgent matter to be considered and a meeting, even a virtual one, does not offer a timely solution. There is a danger though, that boards and executive directors might utilize this option too often and without much discipline. So, even if your non-profit operates in a jurisdiction that provides no legal guidance, there is the potential for internal conflict, even if no one from outside is looking, at how it the email vote was conducted.

I think that a board might consider having a policy to fend off objections. I will offer a sample, one that draws on several Canadian non-profits that have policies one can find online.

Legal Uncertainty

The legal territory regarding board decision-making by email, both in the U.S.A and Canada, is not consistent across all jurisdictions.

Under the ONCA an email vote is prohibited unless there is a special resolution attached to the decision and each voting director signs it physically or electronically. A written resolution would therefore require the signatures of all directors who would have been able to vote at a board meeting for a board resolution or all members who would have been able to vote at a members’ meeting for a members’ resolution. Here, the topic is board meetings.

And so when the resolution is attached to an email, the resolution must still be signed physically or electronically by all directors or members for it to be legally valid.²

I have not discovered any email voting permissions or prohibitions expressed from nine of our ten Canadian provinces or three territories. All have their own non-profit incorporation laws. Few issue much legal guidance.

Some non-profits are incorporated federally under the Canadian Nonprofit Corporations Act (CNCA). Here the advice in unclear. It may be that email voting is not permitted because it does not allow for immediate communication between directors. Alternatively, non-profit boards can vote by email, but it must be done in accordance with the organization’s own bylaws and policies which ought to include specific procedures for electronic voting or written consent.³

In the United States few jurisdictions have specifically authorized the practice of email voting. Laws would suggest that in most U.S. states email voting is legal with some conditions. These include that the vote is unanimous and, like in Ontario, is authenticated by a signature in writing. In other words, not only is an email reply itself not good enough, but the matter must not be contentious.⁴

Bylaw clarity

It is generally accepted that incorporation bylaws whether they be under federal, provincial or territorial legislation, should not be too detailed as to board practices. Voting is one of those things best left to interpretation or the creation of policy. I do not feel there is a need to change one’s bylaws to accommodate email voting.

Indeed, most non-profit bylaws do not even specify whether membership or board meetings need to be in-person meetings. The addition an article allowing in-person, virtual or hybrid meetings has become a common bylaw amendment. Also, in some cases, reference to “place” may need to be removed to the requirements for meeting notices.

Email voting situations

What situations might be ones that would lend themselves to an email vote by the board? It should be said that boards that meet monthly should seldom need to make use of email decision-making. Boards the meet bi-monthly or quarterly are more likely to find it useful.

Board reliance on email will also hinge on whether one’s organization has a robust set of policies especially ones that authorize the executive director to make day-to-day decisions. Indeed, it is hard to think of many decision matters that would not be well addressed and/or constrained by policy.

Here are a few examples where a board may need to turn to an email vote:

• The approval of an unbudgeted expenditure
• The approval of an expenditure above the amount the ED has been authorizing to spend
• Acceptance of an unexpected grant where the funder requires formal confirmation of board approval
• Appointment of auditors for the current fiscal year that was not approved at the most recent AGM
• Approval of audited financial statements, as a recommendation from one’s audit committee, a draft of such statements having been presented at a board meeting previously.
• Acceptance of a director resignation
• Approval of the allocation of a year-end surplus amount

Again, a couple of these matters are better handled by policies that enable a board to focus less on operational matters in their decision-making.

Towards an email voting policy

While the ONCA now prohibits email board voting, a now obsolete 2021 policy of the Ontario Hockey Federation is a good example of what a policy might say. The OHF policy allows email board voting under the following conditions:

Board discussion of important issues via email can bolster good governance, but as the above suggests, voting on a matter ought to be kept separate.

Email board discussions, even more so than in-person ones, can suffer from imbalances in participation and too much caution in expressing comments if the board does not have a trusting and resilient culture. Use of the written word via email, as most of us realize, has its benefits and drawbacks. I would make the case that email discussions generally require more forethought in how they are initiated and facilitated .

Regarding board discussions I would refer the reader to my “Do you have any questions? alternative” in my September 2023 post Five Governance Hacks.

Likewise, I would direct those interested in some internal email protocols their non-profit might want to consider, to read my 2021 guide on Board-Staff E-mail Communication.

Finally, I would caution a board not to “add on” an email vote option for directors not present, following a board meeting, especially where a decision is needed but a quorum was not achieved. My post What If We Do Not Have Quorum? speaks to this issue .

Final words

Given that, in 2025, most boards have virtual meeting options available to them, it seems to me that the case for making decisions by email is getting weaker.  The policy I suggest here presents a higher bar that most might like to see. But like other policy examples on this site, broadening the criteria a little may be better than ignoring the matter altogether.

<< Note on the Image >>

We are weeks away from a Canadian Federal election. It is an especially consequential one because of the chaos sown by a U.S. administration that seems malevolent and retributive in its orientation. Non-profits there are being seriously impacted. Social and health program essential to a caring society are at risk. Canadian non-profits will be affected too, especially those working to address global issues like climate change and biodiversity and their social justice dimensions.

Sources:

1. Resources useful in researching this post not referenced elsewhere include: Ed Rees, Navigating The Complexities of Nonprofit Board Voting Procedures, Board Effect August 2024; and Nick Price, The Risks of Board Voting by Email, Board Effect, January 2019 [↩]
2. See section on Electronic Board and Members Meetings under the ONCA from Nonprofit Law Ontario [↩]
3. Federal Government sources are confusing on the matter of email board voting under the CNCA. My information comes via two different AI responses via Google [↩]
4. See Gene Takagi and Emily Nicole, Can Nonprofit Boards Vote By Email?, Blue Avocado, October 2009 [↩]
5. Other policy examples found: Canadian Association of Journalists, Alberta Artistic Swimming, The Shuswap Theatre Society, Community Radio Fund of Canada [↩]