Offensive, harassing, and false comments are common in condominiums, especially surrounding the election or removal of directors and large repair projects. These statements don’t necessarily equal defamation or harassment, although they might.
Defamation requires that the communication be defamatory. This means that it lowers the reputation of the subject in the minds of ordinary members of the public. The comment must also be communicated to someone other than the person defamed. Proving these elements does not mean the person will succeed in his defamation claim as there are several recognized defences to defamation. For instance, truth is an absolute defence that relieves the commenter from any liability.
There have been a few noteworthy defamation cases in condominiums in recent years. The surge of interest seems to have started about five years ago after a former director claimed a requisition to remove him was defamatory1. The reasons for removal were the typical failure to “act honestly and in good faith” and “to exercise the care, diligence and skill that a reasonably prudent person would exercise in the circumstances.” The court found that the comments made about the director, namely the reasons for removal, were defamatory as they would harm his reputation. However, the court also found that several defences applied. First, the statements were true. The court also found that the defence of fair comment applied as the comments were made in good faith and were expressions of opinion in the public interest. Additionally, the court found that the condominium and directors could rely upon the defence of qualified privilege because they had a legal duty pursuant to section 46 of the Condominium Act, 1998 to reproduce the requisition when they called the meeting of owners.
Interestingly, a later case2 found that unit owners and directors may rely on qualified privilege when sending emails to other owners because they have a legitimate interest in communicating concerns with the directors, management, and other unit owners in the condominium. It is important to note that qualified privilege is not available where the person acted with malice in making the comment.
The attention continued in 2017 when a judge rendered a decision3 that ordered Yahoo! and Yahoo! Canada to disclose information that a condominium required 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”. The court stated that the condominium had a duty under s.17(3) of the Act to take reasonable steps to ensure that the owners and others complied with the Act, declaration, by-laws and rules. This duty included taking steps “to ensure that its board members and employees are not subjected to statements which I have found are capable of being found to be defamatory.”
Sometimes an owner’s communications are not defamatory, but are nonetheless offensive. In these cases, the condominium may still have an obligation to take steps to reduce or eliminate the offensive comments.
Unsurprisingly, there are a number of reported cases where owners engaged in conduct that was described as “abusive”, “degrading”, and “harassing” toward a manager, director, employee or other resident.
In one of the first reported cases4 the owner felt it was appropriate to call employees “tubbo” and “massive hulk” to get their attention. The court found that the owner’s conduct was prohibited by section 117 of the Condominium Act, 1998 which prohibits activities that are likely to cause injury to an individual. The term “injury” includes psychological harm from harassment. The judge also found that the owner’s comments were prohibited workplace harassment as it was a “course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” The court ordered the owner to control her behaviour and refrain from harassing, abusing, threatening or intimidating any employee or representative of the condominium. She was also ordered to pay $20,000 toward the condominium’s legal costs.
In another case5 released in July of this year the court found that an owner harassed the directors and agents of the condominium when he acted in a confrontational and aggressive manner, including making derogatory, insulting, and condescending comments about the board. His communications were frequent, lengthy, and insulting. He also provoked physical altercations and engaged in conduct designed to annoy, such as paying the condominium in nickels. Similarly to the previous cases, the court found the condominium had a duty to protect its workers from harassment under the Occupational Health and Safety Act. It also had a duty to protect others, such as the directors, from harassment according to section 117 of the Condominium Act, 1998. The owner was ordered not to communicate verbally or in writing with employees, contractors, directors, and spouses or family of the directors. An exception was made to permit him to email the manager or, in the case of an emergency, telephone the manager. Interestingly, the order also permitted him to attend owners’ meetings so long as he conducts himself in a “polite manner, is not critical of other persons present and obeys the direction of the Chairperson.” The condominium was awarded its full costs of the motion.
What can a condo do?
There is no one size fits all solution when it comes to defamation or harassment in condominiums as the solution will depend on the content, frequency and severity of the comments, the method of communication, the victim(s), and the audience. That said, here are some general suggestions that might help condominiums facing a situation with an owner who regularly makes defamatory or harassing comments:
- Communicate with the owners – When an owner is making defamatory statements about the condominium, its directors, manager, or others, sometimes the best solution is to address the false statements by releasing your own statement with clear, convincing evidence to illustrate the truth. Stick to the facts and you will often prevail.
- Update Policies & Rules – Many condominiums have anti-harassment policies to protect workers from harassment according to the Occupational Health and Safety Act. Why not create policies to protect others from similar treatment? Some condominiums have rules that prohibit owners from engaging in conduct that is offensive or illegal.
- Limit Opportunities – Consider implementing a communication protocol for any owner who refuses to act in an appropriate manner. A communication protocol usually prohibits the owner from communicating with directors, contractors, or others, and requires the owner to communicate only with the manager. If the owner is inappropriate with the manager it often imposes other conditions, such as limiting communications with the manager to in writing communications only, except in emergency situations.
Regardless of personal thoughts about the situation, the condominium should take all complaints of harassment and defamation seriously and promptly investigate them. If the condominium fails to do so it could be found to have breached its duties. This could have costly consequences. As such, it is important to communicate regularly with the person who made the complaint and take the necessary steps to address the defamatory or harassing comments made toward them.
If all else fails and the owner continues to harass or defame people, the condominium should speak with its lawyer about its obligations to protect certain groups from harassment and defamation. Unfortunately, as is illustrated by the cases referred to above, in some cases legal proceedings will be the only remedy to an owner’s offensive, defamatory, and harassing comments.
1 Swan v. Durham Condominium Corporation No. 45 (2012), ONSC 4639 (available on CanLii at https://www.canlii.org/en/on/onsc/doc/2012/2012onsc4639/2012onsc4639.pdf).
MICHELLE KELLY, B. Comm, LL.B
Robson Carpenter LLP