Owner’s Communication with Condominium’s Staff was Antisocial, Degrading and Harassing

A recent Court decision highlights a situation in which an owner’s communications were considered by the Court to be sufficiently harassing to require a cease and desist order and a compliance order.

The Court found the communication, which included addressing staff by degrading names, to be ‘antisocial, degrading and harassing’.

The owner emailed the management office ‘virtually every day’ with various complaints. In this case, the Court’s concern was not the volume of communication, it was the nature of the emails and the language used. The Court commented that the employees:

come to their place of employment day after day and find correspondence in their inbox that engages in insult, body shaming, name calling, and other types of coarse language and rudeness.’

The Court looked to various authorities, including: Section 117 of the Condominium Act, 1998 (the “Act”); the workplace harassment provisions of the Occupational Health and Safety Act (“OHSA”); and, the condominium corporation’s rules regarding offensive conduct on the property. Based on the foregoing, the Court determined that the condominium corporation was correct to take steps to attempt to require the owner to communicate in a civil, non-harassing manner, and that a legal remedy was appropriate.

The owner was ordered by the Court to:

  • cease and desist from uncivil or illegal conduct that violates the Act or rules of the condominium corporation;
  • refrain from verbally or in writing abusing, harassing, threatening, or intimidating any employee or representative of the condominium corporation;
  • comply with Section 117 of the Act by ceasing to conduct herself in a way that is likely to cause injury to an employee or representative of the condominium corporation; and,
  • pay $15,000 in legal costs to the condominium corporation for the Application. It is worthwhile to note, that in relying on the Court’s discretion for awarding costs, the Court did not award the condominium corporation its full costs, despite there being no apparent wrongdoing on the part of the condominium corporation. This is consistent with similar recent compliance order cases, in which the Court has only awarded condominium corporations’ a portion of their costs.

Harassment is not limited to insulting communications of the sort described in this case. Harassment is defined in the OHSA as follows:

 (a) engaging in 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, or

(b) workplace sexual harassment;

“workplace sexual harassment” means,

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

In summary:

  • Harassment is a violation of Section 117 of the Act;
  • In addition to  having a Workplace Violence and Harassment Policy under the OHSA, we recommend that condominium corporations pass a rule prohibiting violence and harassment – to provide even more detailed and clear protection for workers at the condominium corporation. A rule can also assist in specifying conduct that is considered harassment;
  • this case provides guidance for condominiums dealing with a harassing owner:
    • Try to do your best to communicate reasonably with the owner; and certainly never respond in kind.  In general, don’t just ignore or delete the owner’s correspondence (in case it contains something of genuine importance;
    • At the same time, harassment (including harsh, unreasonable, hurtful communication) is not acceptable and should not be tolerated.

Stay tuned to Condo Law News for more blogs about caselaw updates related to condominiums.

Records Requests under the New Regulatory Framework

The new draft regulations to be established under the Condominium Act provide more detail respecting what is expected of both condominiums and owners alike in relation to the retention and production of condominium records.  This blog examines the new legislative framework for the retention of condominium records and the new procedure governing requests for access to records by interest holders.

Retention of Records – Format and Timing

The amendments to the Condominium Act specifically confirm that condominiums may retain records either in paper or electronic format.  Regardless of the format, the draft regulations establish the following primary retention periods for condominium records:

(a) A default 7 year retention period for financial records;
(b) Unlimited retention period for certain “fundamental” records;
(c) Proxies, ballots and recorded votes from meetings must be kept a minimum of 90 days from date of meeting.

For any other records not specifically mentioned in the regulations, those records must be kept for whatever period the Board deems necessary in order for Corporation to perform its objects and duties.

The above-noted retention periods are considered “minimum” retention periods.  These minimums can be extended if desired, and they must be extended in the event of contemplated or actual litigation, or where there is an outstanding request for records at the time that the minimum retention period draws to an end.

New Procedure to Govern Requests for Records

There are four main steps for accessing records, summarized as follows:

(a) Step 1: The Request

  • The request must be made on a standardized form (to be established by the Ministry), and it must identify the records requested and indicate preferred method of delivery (email, hard copy, or examination in person

(b) Step 2: The Board’s Response

  • Within 15 days of receipt of the request, the Board must respond on a standardized form (also to be established by the Ministry), with an itemized estimate of the associated costs (if any), and identifying records that will not be disclosed, with an explanation.

(c) Step 3: The Requester’s Response

  • The requester responds to the Board, confirming which records he/she  wishes to have, and including payment of the estimated cost.

(d) Step 4: Access and Accounting

  • The Corporation delivers or provides access to the records requested (and paid for) by the requester.
  • If the actual costs are more than estimated, the requester must pay the difference – but the difference cannot be greater than 10% of the estimate; if the actual costs are less than estimated, the Corporation must reimburse the requester for the difference.

The regulations distinguish between “core” records (which are defined in the regulations, and are essentially the basic records of the condominium) and “non-core” records, for purposes of establishing the applicable timing for completion of the above-noted steps and for the related costs.

In general, core documents must be made available on an expedited basis at a reduced cost.  The timing and delivery of core documents can be summarized as follows:

  • If core records are requested in electronic format, they must be delivered either in electronic format or in paper form (at no charge) within 15 days of receipt of the request (i.e. within 15 days of Step 1); in other words, they would be delivered along with the Board’s response in Step 2.
  • If core records are requested in paper format, they must be made available for delivery/pick up within 7 days of the Corporation receiving the requester’s response and payment in Step 3. The estimated cost must be limited to copying charges, at no more $0.20 per page.
  • If the requester makes a request to examine records in person, the records must be made available for examination within 7 days of the Corporation receiving the requester’s response and payment in Step 3. But in this case, the estimated cost can also include reasonable labour cost during the examination.

For non-core records, the same four steps apply, but with different time periods and potentially different costs.  Non-core records must be delivered or made available for access within 30 days of receiving the requester’s response and payment in Step 3.  In the case of non-core records, the estimated costs can include photocopying charges for paper copies (at no more than $0.20 per page), and reasonable labour costs for the board to redact the record and to otherwise respond to the request.  [Some information in the corporation’s non-core records is not available to be seen by owners.  The draft Regulations include some additional detail about this “private” information.]

The draft Regulations also say that a request will be deemed to be abandoned in certain circumstances.

If a condominium, without reasonable excuse, does not permit a requester to examine or obtain copies of records, the condominium may be subject to a penalty of up to $5,000.00.  This is a significant increase over the $500 penalty available under the current Act.

Similar to the current Act, an owner may enforce payment of the penalty through the Small Claims Court.  The contemplated amendments to the Act also specifically confirm that the Small Claims Court has the jurisdiction to order production of documents where appropriate.

Stay tuned to Condo Law News for more blogs about Records under the new Regulations.

Court refuses to order Medical Examination of Misbehaving Owner

A recent decision of the Ontario Superior Court shows that Courts can be reluctant to Order a medical examination of a misbehaving owner – unless there is some real evidence of a mental health issue.

In the case of Toronto Standard Condominium Corp. No. 2395 v Wong, the Ontario Superior Court found that the owner’s conduct was harassing, threatening, intimidating and abusive.  The Court said that her behavior contravened the Condominium Act and the corporation’s declaration and rules; and the Court ordered (pending the final hearing of the application) that the owner not have contact with any employee, manager, security personnel or board member of the condominium corporation, not come within 25 feet of the management office, and not disturb the comfort and enjoyment of the common elements.

The Court declined to order a medical examination of the owner (which had been a further request of the condominium corporation).  The Court said:

The material issues in the litigation before me relate to Ms. Wong’s abusive and threatening behaviour. There is nothing before me, beyond the fact of her behaviour itself, to suggest that Ms. Wong is not capable of understanding information that is relevant to making a decision in respect of the issues in the proceeding, or that she is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding…. I have concluded that Ms. Wong’s behaviour on its own is not a sufficient evidentiary basis to make the invasive and rare order that she undergo a mental examination pursuant to s. 105(1) of the Courts of Justice Act.

Stay tuned to Condo Law News for more blogs about recent caselaw developments that are of interest to Condominiums.

Tarion Review – Final Report from Justice Cunningham

As readers will know from my previous blogs on this issue, Tarion is under review.

Justice Douglas Cunningham has released his final report containing over three dozen recommendations about new home warranties in Ontario and about Tarion, the non-profit corporation that currently administers Ontario’s new home warranty program.

Here are some of the key findings and recommendations in Justice Cunningham’s report:

1.  Under the current arrangement, Tarion plays all of the following roles:

⋅ Provider of the Warranty Coverage
⋅ Administrator of the Warranty Program
⋅ Adjudicator of Disputes
⋅ Regulator of Builders and Vendors
⋅ Maker of Rules respecting the types and levels of Warranty Coverage

Justice Cunningham says that this “multiplicity of roles, at a minimum, gives rise to a perception of conflict of interest and can also result in actual conflicts of interest”

2.  A new not-for-profit corporation should be established to manage the warranties for homes currently enrolled with Tarion.  This new not-for-profit corporation could also participate as a warranty provider in a new competitive model (described in 3 below).

3.  In terms of warranty providers:  Justice Cunningham says: Warranty coverage would move from today’s monopoly, with Tarion as the only provider, to a multi-provider insurance system.  The warranty coverage should be an insurance product” (as exists now in other provinces).  Homeowners, would be required to deal with the warranty provider chosen, for their home, by the Builder.

4. The warranty provider would still attempt to resolve warranty claims (just as insurance adjusters do in relation to other types of insured claims).   But unresolved disputes would be taken to an independent, neutral adjudicator.   Justice Cunningham says: Where there is a dispute, a dispute resolution process must not only deliver justice but also be seen to deliver justice”.

Justice Cunningham says there should be an independent dispute resolution body that has a process for engaging a neutral adjudicator from a roster of adjudicators having practical knowledge of disputes relating to new home construction.  The independent adjudicator would decide the dispute.  Costs of the process (for the homeowner) would be limited to relatively-low administration fees (that would be fully refundable if the homeowner succeeds on only one claim).  [The report also says that special procedures, costs and timelines might apply to warranty claims involving condominium corporations – recognizing the larger size and complexity of such claims.]

[Many commentators – including me – had recommended that there be independent adjudicators for warranty disputes.]

5.  The claimant should only be required to prove the symptom resulting from a defect – not the specific cause – and “if an expert is required, an adjudicator should be able to engage the expert directly at no cost to the homeowner.  The expert would be engaged in a neutral capacity to provide input to the adjudicator and not as an advocate for one or the other of the parties.  As with the selection of the adjudicators, experts should be neutral and preferably drawn from a roster established independently of the warranty providers.”

[I particularly like these recommendations about the use of experts.  In my experience, input from an expert, like an engineer, architect or other building scientist, can be extremely beneficial – often essential – to determining the full nature and extent of a building deficiency, and to determining a complete and reasonable repair.  At present, thorough input from an expert is often lacking, simply because the claimant can’t afford it.  (This was another of my comments to Justice Cunningham – and I’m sure others made similar comments.)]

6.  The warranty claims process should continue to be simpler and speedier than ordinary Court claims.  But claimants should have the right to pursue ordinary Court claims if they wish.  Furthermore, the limitation period (for commencement of ordinary Court claims) should be suspended during any statutory warranty claims process.

7.  Builder and vendor regulation should be delivered through a new regulator – a provincial administrative authority operating separating from, but in cooperation with, the warranty providers.

8.  There should be a code of ethics for Builders and Vendors; and there should be required continuing education for Builders and Vendors.

9.  Information about Builders and Vendors should be more accessible and more transparent.

10.  Rule-making respecting the types and levels of warranty coverage should be subject to greater government oversight.  Government should make the final decisions in these areas (after thorough consultation with the new home construction sector and with consumers).

11.  There should be enhanced consumer education about Home Purchasing and Home Ownership, including education about the Warranties and about the Warranty Process.

12.  New home deposit protection should be reviewed / increased to reflect current markets.

We don’t yet know for sure what steps the province will take in light of Justice Cunningham’s report; but initial indications are that the province may well implement many of Justice Cunningham’s recommendations. At a speech given on March 28th, Government and Consumer Services Minister Tracy MacCharles had the following to say: The new home building sector is an important driver of Ontario’s economy and, quite frankly, I believe it deserves a stand-alone regulator” and “We believe that consumers can be better protected by giving government the lead in making rules and setting standards.”  See also the Ministry’s Press Release from the same date.

The province is expected to present a draft bill in the coming months.  For more information,  go to the Ministry’s website.

Stay tuned to Condo Law News for more blogs about the changes to Tarion.