Recently, a condominium corporation in Toronto was reported to have enacted a rule which, among other things, sought to limit the ability of residents to complain to the condominium. Various parties including residents of the building in question have expressed outrage at such a rule.
In particular, the rule was reported to contain wording prohibiting “unreasonable and/or repetitive expression of concerns with respect to the administration of the affairs of the Condominium Corporation.” This appears to be a small portion of a rule generally relating to a harassment policy.
The subject rule drew a lot of attention. In addition to television news coverage, a Reddit discussion board, for example, contained extensive discussion of the rule, with a thread entitled “my condo is making it against the rules to complain.”
In the writer’s view, while the rule perhaps was worded in a way which invited such reaction, the intent of this rule clearly seems to be aimed at preventing harassment of the condominium’s representatives, which is an extremely important issue.
What has been lost in the coverage to some degree are the extremely serious problems that many condominium boards and managers face relating to resident interactions and complaints. Resident complaints are natural and it is natural for residents at times to become passionate about their home and the issues affecting their living situation and finances. Sometimes residents go too far, however, resulting in harassment of board members and managers.
In fact, in recognition of the problem of harassment in the workplace (which includes condominiums) the Ontario government has enacted legislation to guard against harassment. The Occupational Health and Safety Act, commonly referred to as “Bill 168,” includes provisions that specifically address workplace harassment.
While the rule against “repetitive” expressions of concerns might have used different language, the underlying approach is understandable. There is some concern raised that such a rule may not be valid. That would be an issue of perhaps at one point for the courts or an arbitrator to decide. Keep in mind in any event that boards of directors have to act prudently under the current Condominium Act and such a rule would have to be enforced in a reasonable manner.
The subject rule should also be viewed in the context of recent court decisions concerning harassment in condominiums.
Harassment of condominium management was addressed in the recent case of York Condominium Corp No 163 v Robinson, a decision of the Ontario Superior Court released in April 2017. In that court decision, various court orders were made against a condominium unit owner for having communicated in a harassing manner to condominium management. The communications were frequent, and often included insulting and degrading language towards management and other condominium staff.
The court even invoked section 117 of the current Condominium Act, which prohibits residents from conducting themselves in a dangerous manner. In this case it was noted that the psychological harm to employees was of concern. This case was a more extreme situation of communications to the corporation, but illustrates that there are limits on how residents may communicate.
The subject rule involves the inevitable conflict between allowing owners to freely communicate with the condominium on one hand, and harassment or unreasonable demands on the condominium representatives’ time on the other.
One option for boards and managers to consider may be to reply and set ground rules if a manager is feeling harassed or a resident is ‘monopolizing’ the manager’s time. This would offer an alternative to escalating a dispute with a resident by enforcing a rule or even commencing court proceedings.
For example, the condominium may clearly outline to the resident in question that given the number of his or her complaints the board and management may not be able to respond in a timely manner. In more serious cases an owner could be advised that the corporation may simply ignore or delete email messages, for example. If these steps are taken, the board or management should clearly advise the resident that he or she can use the usual contacts (emergency numbers) in the case of genuine emergency the usual contacts. At this stage, it’s advisable that condominiums seek some legal guidance.
As was of concern in the Robinson decision, condominiums are sometimes reluctant to completely ignore an abusive or harassing resident in case a valid issue is raised. That is, it’s not always possible or practical to simply ignore a resident by, for example, deleting or blocking email messages. Blocking communications can be a tool in some situations; however, this does not always work.
In this regard, the writer’s office was involved in a recent unreported court decision where a resident continued to harass board members and management. When communications were ignored and/or blocked after providing notice to the resident to that effect, the harassment ultimately expanded to other parties including many other lawyers in the writer’s firm. In the end, the resident was found to have harassed the condominium and the writer’s office and was ordered by the court to stop, with a significant costs order to be paid by the owner of the subject unit.
The bottom line is that any restriction on ‘repetitive’ complaints needs to be interpreted in light of the purpose of such a rule, being the protection of condominium representatives from harassment. It would seem that repeating a complaint in itself would not violate the rule and that the matter escalates to a violation of the rule when the communications rise to the level of harassment.
David Thiel is a partner in the condominium law group at Fogler, Rubinoff LLP. He can be contacted at firstname.lastname@example.org or 416-864-9700.