There has been a lot of talk this week about defamation in condos. Most of the interest comes from a decision released in Ottawa last week. A judge has ordered Yahoo! and Yahoo! Canada to disclose information that a condominium needs to determine the identity of a person responsible for sending defamatory emails to its owners and residents. The emails apparently accused the directors of receiving kickbacks.
…don’t say anything at all. This is one of the first lessons most people learn as preschoolers. If they continued to say negative things about others, there were usually consequences, like a timeout or their favourite toy was taken away. This is how most people learned to communicate with others in an appropriate way.
Unfortunately, it seems like some owners could use a refresher on this basic rule. I frequently hear of owners, managers, directors, or staff being harassed by an owner calling them inappropriate names, yelling at them, or using vulgar language. In some cases, the owner may not know they are being offensive, but in most cases, they do. Maybe they think there are no consequences for their inappropriate behaviour now that they are adults. Afterall, who is going to give them a timeout or take away their favourite toy? There are no condo police.
Fortunately, a recent case suggests that there are consequences for owners who choose to harass others living or working in the condominium.
As 2017 approaches I find myself reflecting on the most important news, cases, and other events from this past year. Here are my favourite condo lessons for 2016:
10. Property Managers may be liable for errors in status certificates. The responsibility for the status certificate is normally set out in the management agreement so make sure that you are familiar with any limitations of liability and any obligations on the board to disclose information relevant to the status certificate. You can read the most recent case here and the costs award here.
If I had a dollar for every time I’ve heard “this is harassment” in response to a letter sent by one of my condominium clients to an owner about a rule violation I could have retired at 26. It seems to be an allegation that is thrown out without much consideration about what it actually means. What does it mean? What obligation does the board have to investigate complaint of harassment? What steps should a board take when it receives a complaint? Fortunately, recent decisions provide answers to these questions and more. I’ll briefly discuss two cases today.
The first case is Wexler v. Carleton Condminium Corporation No. 28. An owner commenced an action in Small Claims Court against the condominium seeking about $2,500.00, mostly for alleged harassment by the condominium. The condominium argued that it was not harassing her, but taking steps to ensure that she complied with the Act, declaration, by-laws and rules.
The judge reviewed the case law on civil harassment and identified four elements:
- was there outrageous conduct by the defendant?
- did the defendant intend to cause emotional distress to the plaintiff?
- did the plaintiff suffer severe emotional distress?; and
- was the plaintiff’s emotional distress caused by the defendant.
The court found that the owner did not present any evidence of the elements and dismissed her action with costs. The judge said:
The Corporation’s conduct was not outrageous; the Corporation was enforcing the provisions of the Act, the Declaration, the By-laws and the Rules. It was exercising its statutory duties. The Corporation had no intention of causing emotional distress to [the owner], nor did it act with a reckless disregard which could have caused emotional distress to her.
I understand that the condominium asked for over $35,000.00 in costs from the owner, even though cost recovery in Small Claims Court is normally limited to 15% of the amount claimed. The judge found that a higher amount was necessary to penalize the owner for her unreasonable behaviour and awarded the condominium $20,000.00 in costs. This means that at least $15,000.00 in costs will become common expenses all because this one owner felt harassed by the board satisfying its duty to ensure the owner complied with the Act, declaration, by-laws and rules.
The second case is Welykyi v. Rouge Valley Co-Operative Home Inc.. A group of 10 owners made human rights complaints against a co-operative. The owners claimed that the board did not respond appropriately to discriminatory and vulgar messages posted throughout the co-operative over a 5 month period. The Tribunal characterized the messages as “truly heinous” displaying a “shocking level of ignorance and intolerance.” Many of the owners were previous board members. According to the decision, there was tension between the “old board” and “new board”. The board never identified the person or persons responsible for the messages.
The Tribunal reviewed the case law, including the obligation of a housing provider, such as a condominium’s board, to address complaints of violations of the Human Rights Code. The Tribunal described the factors to be used in assessing whether a complaint has been adequately addressed:
- was there in place a harassment policy, complaint mechanism, and training?;
- once a complaint was made, was it taken seriously, dealt with promptly and sensitively, and reasonably investigated and acted upon?; and
- was a reasonable resolution found and was it communicated to the complainant?
The factors are not definitive, but are to be used as a general guide.
It is clear from reading the decision that the Tribunal was primarily concerned with the board’s failure to acknowledge the complaints and investigate them. The Tribunal found “significant deficiencies” in the board’s response and awarded each owner $3,000.00. The Tribunal also ordered the board to circulate the decision.
While it is a case about a co-operative its principles will likely be applied to condominium boards. In my opinion, the important points to take away from the case are:
- condominiums should have anti-harassment policies, rules or complaint procedures in place;
- boards should be trained in human rights issues;
- boards should acknowledge complaints and keep complainants informed;
- boards have an obligation to promptly investigate complaints of harassment, which should include speaking with the complainants and anyone else who may have knowledge of the incidents;
- boards have an obligation to take steps to prevent harassment, which may include re-positioning cameras or improving security features; and
- boards should condemn harassment, which may be done at meetings or by sending out notices to all owners condemning the behaviour.
Interestingly, the Tribunal seemed to suggest that the installation of fake cameras could have been an option for the co-operative:
Relocating a camera in this way was appropriate action for the Board to take. The installation of fake cameras, whatever the other issues that arise with deploying non-functional cameras, could have been a reasonable approach for the Board to take in light of its poor finances. Non-operational cameras could be a deterrent, provided that the fact that they do not function does not become known.
The Tribunal also criticized the board for failing to investigate because they relied upon bad advice that they had to capture the perpetrator to find a proper resolution:
Catching a harasser is not always possible, as in this case, and a housing provider should not focus on apprehension to the exclusion of other considerations, such as communicating with and supporting the victims.
As such, the board had an obligation to investigate the complaints and support the victims, even if it was unlikely to determine who were the culprits of the messages.
This was a long post, but the cases highlighted so many important point about harassment in condominiums that it was impossible to cut any portion out. Do you have any practical solutions to addressing harassment?