The Protecting Condominium Owners Act, 2015 provided some new protections for owners, but may not have gone far enough to provide protection for condominium directors, managers and condominium corporations as a whole.
While the majority of condo owners treat each other, the board and management with respect, there are some who do not. If this is happening to you – or in your condo – what should you do? Here are some steps that condo corporations should consider to protect managers and directors from unreasonable treatment.
Document, Document, Document
It is critical to document any issues and bring them to the attention of the board of directors of the condominium. When documenting, it is helpful to set out the date, time and location of the incident and any steps that were taken to address the issues at that time. Preparing notes contemporaneously to the events is also helpful as it would then be fresh in your mind.
Violence and Harassment Policies and Rules
Ideally, condominium corporations can consult their violence and harassment policy, which should be in place before a harassment problem arises from within the community.
It is also recommended that a rule be passed confirming that the provisions of the policy (which govern workers) are also applicable to owners and directors in the condominium. The policy and, hopefully, the adopted rule, will define violence and harassment and set out steps that can be taken in the event that a manager, director or owner faces inappropriate treatment.
The condo corporation should ensure that it is taking the required steps as outlined in the violence and harassment policy. This usually begins with a review of the procedures, including receipt of a complaint and consideration of whether the complaint amounts to harassment. It is important that the policy be practical and user friendly in order to be effective.
The corporation may wish to obtain legal advice in order to ensure that the policy has outlined the necessary steps to protect the manager or director(s) who might encounter such difficult behaviour.
Dealing with Problematic Behaviour or Complaints
It is essential to address abusive behaviour that is making life difficult for managers, directors and even other owners. Generally, the implementation of a policy and rule should set the tone and standard for acceptable behaviour within the community. In the event that specific problems arise, the corporation must take action to address the situation.
The corporation should immediately consider writing to the affected owners, directors or manager to confirm the basis for complaint and the allegations of improper conduct. This letter should also confirm that the respondent has a right to know who is making allegations against them, and that he or she will receive a copy of the complaint.
The corporation should then write to the person who engaged in the behaviour to confirm the complaint and seek a response. In the case of clear contraventions of the Condominium Act, 1998, and the corporation’s declaration, by-laws and rules, the letter can confirm what breaches have occurred and advise that the behaviour must stop. The letter could also state that a failure to comply with the obligations under the Condominium Act, 1998, and the corporation’s declaration, by-laws and rules could result in the matter being turned over to legal counsel.
Depending on the nature of the complaint, the condo corporation may consider appointing an external investigator to determine whether the alleged behaviour occurred and make recommendations to the condo board.
If the behaviour does not stop, legal counsel may need to get involved. The circumstances of each individual case will then be reviewed to determine how best to proceed and resolve the situation.
In some cases, a communication protocol can be developed to control behaviour. Other times, a meeting between parties may resolve the conflict or problematic behaviour. In cases when the behaviour does not stop, despite several letters and attempts to resolve the matter, the corporation will need to bring an application for compliance to the court and seek the court’s assistance in resolving the matter.
Case in Point
The court’s assistance may be necessary to establish protection orders and remove the person engaging in harassment or violence if the abusive behaviour continues.
We recently had to seek an injunction from the court due to an owner’s problematic behaviour. The behaviour continued to escalate because of an ongoing disagreement between the owner and the corporation. Despite many letters and previous court orders, the owner continued to harass, intimidate and abuse the board and their spouses, the corporation’s manager and contractors.
The court reviewed the behaviour and found that the owner’s conduct included harassment, intimidation, verbal abuse and physical assault of directors, associated personnel and residents of the condo. The court declared the owner’s behaviour, including the physical misconduct and his campaign of aggression, constituted workplace harassment—a breach of the Occupational Health and Safety Act and a breach of Section 117 of the Condominium Act. As a result, the corporation’s motion was granted. The owner was ordered to comply with the Condo Act, declaration, by-laws and rules, and prohibited from communicating with the board, management and contractors—except in very specific circumstances. The owner was also ordered to pay all of the corporation’s costs.
There have been other cases where the court has ordered the removal of a problem tenant or the forced sale of an owner’s unit when the abusive behaviour was severe enough. Unfortunately, the court process can take time and often leaves managers and directors who are exposed to this type of behaviour frustrated and exhausted. An interim protection order may be necessary if the litigation process is slow-moving.
Managers and directors must be protected by the condo corporation. While it is hopeful that owners will show managers and directors proper respect, in the event they do not, the condo corporation needs to take steps to ensure they are protected. This includes creating policies to follow and taking immediate steps to seek compliance in the event of abusive behaviour behaviour.
Cheryll Wood is an associate at Davidson Houle Allen LLP, and has been practicing condominium law for seven years. She represents condominium corporations, their directors, owners and insurers throughout eastern Ontario.