As CondoBusiness’ readers will no doubt know, recent widespread amendments to condominium law and management in Ontario were first introduced under the omnibus Protecting Condominium Owners Act.
When these lawyers first read the Protecting Condominium Owners Act, it raised an immediate thought: “Fair enough, but what about protection for condo directors and managers and condo corporations as a whole?”
Experience as lawyers mainly representing condo corporations and other types of shared property committees suggests that it’s not easy being a condo director or manager. The main reason is that they are on the “front lines,” dealing with difficult owners and occupants.
Ninety-eight per cent of condo owners and occupants are extremely reasonable and are a pleasure to deal with. But it’s the two per cent that can make life almost intolerable for condo directors and managers. And it’s exceptionally important that condo directors and managers be protected from harsh and unreasonable treatment.
If condos in Ontario are to continue to be strong, reliable investments and to be positive living and working environments, strong condo corporations, with strong support for condo directors and managers, are needed.
Courts willing to take firm approach
So, what to do about the two per cent? Fortunately, the courts have shown a willingness to firmly deal with difficult owners and occupants. Here are some examples:
Recently, in the case of Peel Standard Condominium Corp. No. 984 v. 8645361 Canada Ltd., the Ontario Superior Court ordered that a corporate owner sell and vacate the owner’s units due to mistreatment of members of the condo management team. In that case, the respondent, 8645361 Canada Ltd., owned one of the units, and also occupied other units, in the commercial condo. The court found that the owner’s president had been mistreating the employees, managers, agents and/or members of the board of PSCC 984.
On an interim basis (pending the final hearing), the court ordered, among other things, the owner’s president to refrain from “contacting, communicating, harassing, or coming within 25 feet of PSCC 984 Personnel.”
The problems continued, and the condo corporation applied for the interim order to be made permanent. In addition, because of the alleged continuing violations, the condo corporation applied for a further contempt of court order requiring that the owner sell the unit and “forthwith vacate all units in which they operate their businesses.” The court agreed and granted the requested orders.
Another leading case on these sorts of issues is Metropolitan Toronto Condominium Corporation No.747 v. Korolekh. In that case, the Ontario Superior Court found that the respondent owner had repeatedly engaged in “extreme” behavior, including physical violence; use of a large aggressive dog to frighten and intimidate; extraordinary verbal abuse of other residents; and interference with enjoyment of property as well as actual damage to property.
As a result, the court concluded that the owner was not suited to condo living and ordered that the owner’s unit be sold.
In a 2013 decision, the courts also dealt with communications between board members and owners. In the case of Diamantopoulos v. Metropolitan Toronto Condominium Corp. No. 594, the condo corporation had directed the owners to “refrain from communicating with members of the board, except through the management office.” The owners objected to this (among other things), but the court supported the board’s direction. The court said:
“The (condominium corporation) has asked the (owners) to use the management office when communicating with the members of the board of directors….This seems sound policy for two reasons: (a) it facilitates corporate record-keeping (it is more likely that these communications will be documented properly if they go through the office); and (b) it protects board members from undue interference with the quiet enjoyment of their own units and the common areas.”
This decision allows condo directors to be protected from excessive or unreasonable communications with owners. That’s not to suggest that condo boards shouldn’t communicate with owners. A strong condo community depends on clear and fulsome communications between the board, the management and the owners. But these lawyers most definitely agree that individual directors should be protected from individual communication with owners, if they wish.
So, in appropriate cases, the courts are clearly prepared to take quite drastic action (including ordering that an owner sell) if this is necessary to protect the other owners or the members of a condo’s “management team.”
Occupational health and safety obligations
It should also be stressed that Ontario’s Occupational Health and Safety Act and regulations (OHSA) require that all workers be protected from workplace violence and harassment (including new provisions regarding sexual harassment). In addition, all condo corporations having at least one employee are required to have Workplace Violence and Harassment Policies.
Unfortunately, the policies are somewhat limited in the sense that they (and the OHSA) only deal with “workers.” Their application to volunteer condo directors (not to mention all owners and occupants) is therefore uncertain. For these reasons, it is recommended that all condo corporations consider passing rules against violence and harassment (including sexual harassment) anywhere on the condo property.
In these lawyers’ view, any sort of violence or harassment would, in almost all cases, contravene section 117 of the Condominium Act, which currently reads as follows: “No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.” Violence (including threats of violence) and harassment are harmful, which is why they would likely contravene section 117 in virtually every case.
But the advantage of a rule is that it can specifically define “violence” and “harassment” — borrowed from the OHSA — and the rule can also make it clear that all owners, directors and representatives of the manager must not be treated with violence or harassment (which, again, goes beyond the OHSA). In these lawyers’ view, this enhances the possibility that a court will step in and help when necessary — as seen in the cases noted above.
So, what does a condo director or manager do if he or she is subjected to violence and/or harassment from an owner or occupant?
As a first step, consider the need for a policy and/or rule respecting violence and harassment, as noted above. And, of course, the condo corporation must take reasonable steps to enforce such policies and rules.
When a problem arises, immediately take the matter to board and, where appropriate, consider obtaining the advice of legal counsel. Depending on the circumstances (depending on the parties involved), it may be necessary to deal with matters of conflict and matters of privacy or confidentiality. Meetings between the parties involved can sometimes be a very effective way to resolve matters — but sometimes not.
In appropriate cases, if it is concluded that violence and/or harassment has taken place, one or more “cease and desist” letters (to the alleged violator) may be the place to start, followed by court or other legal processes if the problems continue. In any legal process, it may be appropriate to seek an early “interim order” from the court – to control the alleged misbehavior pending the final hearing at which all of the evidence (and all challenges to the evidence) can be revealed and argued before the court.
The case for more protections
The bottom line is that protections — for board members and managers — do currently exist in Ontario’s laws. But these lawyers would like to have seen more in the way of protection for condo directors, managers and corporations, in the new legislation. Among other things:
Specific new protections against violence and harassment — for all owners, directors and managers — should be added to section 117 of the Condominium Act. (Section 117 is to be amended, and there is also the possibility for new regulations under section 117, but so far there is no indication that violence and harassment will be specifically addressed.)
There should also be a strong, clear indemnification provision right in the Condominium Act or regulations making owners responsible for all costs that they (or any occupant or invitee of the unit) causes the condo corporation to incur (and that such “chargebacks” are added to the owner’s common expenses). Instead, the Condominium Act requires that such provisions be contained in the condo’s declaration. In these lawyers’ view, this concept should apply to every condo and every condo owner in Ontario — without regard to the declaration.
In summary, while explicit protection for condo directors and managers and condo corporations as a whole is not set out in the Condominium Act, condo corporations can take steps to address violence and harassment through policies and rules. If that doesn’t work, the courts have shown that they are willing, if necessary, to remove the difficult owner.
James Davidson is a partner at Davidson Houle Allen LLP, and has been practicing condominium law for more than 35 years. He represents condominium corporations, their directors, owners and insurers throughout eastern Ontario.
Cheryll Wood is an associate at Davidson Houle Allen LLP, and has been practicing condominium law for six years. She represents condominium corporations, their directors, owners and insurers throughout eastern Ontario.