When we first think of condo living, images of Disney’s Snow White and the Seven Dwarfs come to mind. The birds are chirping, the landscaping looks great, the air smells fresh and everyone lives harmoniously under one roof. However, the reality of condo living sometimes turns into a scene from the 1980’s movie the “Burbs,” where communal living is not so ideal.

Unfortunately, over the last couple of years, we have seen an increasing trend of unacceptable behaviour within condo communities, directed at property managers, directors, other owners/residents and even contractors. As a result, condo corporations are beginning to implement harassment rules and policies and seek legal advice on how to handle these difficult situations.

As condo communities are not only places where people live but also workplaces for many, even if the condo itself does not have employees, it is important to address this unacceptable behaviour from a variety of angles.

As a workplace, condo corporations have responsibilities under the Occupational Health and Safety Act (OHSA). Under OHSA, an “employer” is defined as someone who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services. The obligations of employers under the OHSA apply to condominiums as well, even if the condominium does not have any employees of its own.

Condos will fall under the definition of employer as they are someone who contracts for services. Condos are also considered owners under the OHSA and as such have obligations as owners. Under section 32.0.1 of the OHSA, an employer must prepare a policy with respect to workplace violence and harassment and review the policy at least annually. While there are other obligations under the OHSA that need to be followed by employers, at a very minimum, a condominium corporation should implement a workplace harassment, violence and discrimination policy to meet their obligations under the OHSA.

In addition to the policy, the condominium corporation must implement a rule that prohibits harassment, violence and discrimination. A rule is necessary as there are no provisions in the Condominium Act that allow a condo to enforce a policy.

However, a rule that prohibits harassment, violence and discrimination and makes it a requirement to follow the policy can be used to ensure that condo corporations can enforce the policy. When drafting the rule and policy, it is recommended that you consult your legal counsel.

Even if condos were not considered workplaces, the need for rules and policies to address harassment, discrimination and violence are needed. Whether you live or work at a condo, a basic expectation is that everyone will treat each other with decency and respect, and will not engage in harassing, discriminatory or violent behaviour.

Why is such a rule not part of the standard set of rules in every condo from the very beginning? Maybe because it is just common sense and everyone expects this without having to say so. However, for a condo corporation facing a situation where there is harassment, discrimination or violence occurring, having a rule in place which they can use for enforcement purposes makes it much easier for a board or manager to take action sooner in relation to this unwarranted behaviour.

The other alternative is to rely on s. 117 of the Act which prohibits dangerous activity that could cause damage to people or property. However, while the courts have recognized that harassing behaviour can be considered conduct that falls under s. 117, it would be much easier to deal with that behaviour once it starts as a breach of a rule rather than wait for the behaviour to get to the level that would meet the s. 117 threshold.

If we take a look at cases in which the courts have used s. 117 to deal with harassment in condos, the type of behaviour that was presented to the court went on for long periods of time. Having a rule that specifies what type of conduct is and is not acceptable can be beneficial to condos when trying to put an end to that behaviour sooner than later.

While to many it is just common sense and decency to act appropriately around fellow owners, residents and workers, sometimes you will run into a situation where this common sense needs to be clearly spelled out in a rule. Having such a rule in place is preventive medicine.

In addition to implementing a rule, there are some other things boards and property managers can do to help curb this type of behaviour and deal with difficult situations. While this may not stop all instances of harassment, discrimination or violence, it may prevent a difficult situation from turning into one.

At the November 2022 CCI Huronia webinar entitled, “Difficult People or Difficult Situations: Are they the Same?”, a panel of speakers, including myself, offered some useful tips on dealing with these challenges. Here are my top five takeaways from that webinar.

1. Separate the problem from the person. Address the problem and don’t make it a personal attack on the person. It is not an “us” vs. “them” proposition.

2. Look in the mirror. What are “you” doing to make the situation more difficult to handle.

3. Be proactive. Think about your tone and content of communication so you do not make the situation more difficult. Perhaps use your first letter as an opportunity to educate and open a conversation about the situation rather than just telling someone they are doing something wrong. Keep in mind cultural issues and language barriers.

4. Be transparent and employ the open book principle. Situations and people become more difficult when there is a feeling that something is being hidden.

5. Learn more about mental health issues and resources available in your area to be able to assess whether or not you are dealing with a mental health issue and if you are located where you can get assistance. Not every difficult person has a mental health issue but sometimes an underlying mental health issue can explain behaviour and may alter how you handle the situation.

Finally, it is important to remember the limits of a board member or property manager’s capabilities. Far too often, owners contact the board or property manager because they are scared of someone’s behaviour or a situation. Educate your owners about when they should call the police instead. Certain types of harassment can be Criminal Code offences and the police should be involved.

In situations where someone faces or fears imminent harm or danger, condo directors and property managers are not equipped to respond to these types of situations and shouldn’t be expected to get in harm’s way and become the target of harassing, violent or discriminatory behaviour.

The CCI Huronia webinar, “Difficult People or Difficult Situations: Are they the Same?” can be accessed here: https://ccihuronia.com/events/2022/10/21/lunch-and-learn-webinar-october-2022 or at https://www.youtube.com/watch?v=gQeb5KHEGQQ

Sonja Hodis is a litigation lawyer based in Barrie who practices condominium law in Ontario. She advises condominium boards and owners on their rights and responsibilities under the Condominium Act, 1998 and other legislation that affects condominiums. She represents her clients at all levels of court, various Tribunals and in mediation/arbitration proceedings. She also acts as mediator or arbitrator in condo disputes. Sonja can be reached at (705) 737-4403, sonja@hodislaw.com or via her website at www.hodislaw.com.

This article is provided as an information service and is not intended to be a legal opinion. Readers are cautioned not to act on the information provided without seeking legal advice with respect to their specific unique circumstances. Sonja Hodis, 2022 All Rights Reserved.