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.

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Bill 132 – Update to Workplace Harassment: Is Your Condo Compliant?

A condominium corporation is an employer for the purpose of the Occupational Health and Safety Act (OHSA), and therefore is required to adhere to the obligations under the OHSA relating to prevention of workplace violence and harassment. Such obligations include having workplace violence and harassment policies and programs, which must be tailored to the condominium corporation’s workplace.

 

Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, introduced amendments to various laws to address issues including sexual violence, sexual harassment and domestic violence. Effective September 8, 2016, the bill amends the OHSA by updating the definition of Workplace Harassment to include “workplace sexual harassment”.

Under the OHSA, workplace sexual harassment now means:

  • 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

 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;

The amendments to the OHSA by the Sexual Violence and Harassment Action Plan Act also include steps that an employer must take in an effort to address workplace harassment, including:

  • Having a written program that must, amongst other things, include explanations as to how incidents and complaints will be investigated;

 

  • Ensuring that an investigation, appropriate in the circumstances, is conducted into incidents and complaints of workplace harassment;

 

  • Informing the complainant and the alleged harasser in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;

 

  • Reviewing the workplace harassment program as often as necessary, but at least annually, to ensure that it adequately implements the workplace harassment policy.

 

It is important to review your corporation’s workplace violence and harassment policies and programs so that any changes required as a result of the amendments can be made, to ensure that the corporation is complying with these provisions of the OHSA.

We always recommend that the corporation’s policies and programs be in writing, even though the OHSA allows policies to not be in writing if there are fewer than six employees.

Employers have an obligation to take the issues of workplace violence and workplace harassment seriously, and to act in accordance with its obligations if a complaint is received, or an incident occurred.

If you have any questions about workplace violence and harassment policies and programs for your corporation, or questions about the amendments to the OHSA, please contact us.

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Ontario Human Rights Tribunal Finds That Co-op Board Failed to Properly Respond to Harassment of Former Board Members

A recent decision of the Ontario Human Rights Tribunal, involving harassment at a co-operative corporation, may also be important for condominium corporations.

In the case of Welykyi v. Rouge Valley Co-operative Homes Inc., the Tribunal held that the Co-op’s Board of Directors had failed to adequately address harassment of members of the community. Briefly, the facts were as follows.

There was tension between a previous group of Board members and the new Board. This tension stemmed from a dispute about the alleged use of Co-op funds to renovate a particular Board member’s unit. Between April 28, 2012 and September 15, 2012 an anonymous and unidentified person wrote or posted eighteen upsetting and disparaging messages about certain members in the Co-op. Some of the targeted members were from the previous Board.

Some of the messages referred to specific individuals and their unit numbers. The content included terms related to disability, race, sex, gender identity, ancestry, age or receipt of public assistance. These are prohibited grounds of discrimination in relation to the occupancy of accommodation under Ontario’s Human Rights Code. The messages were posted around the Co-op, in the mail room, on specific members’ doors and written on the walls of the elevators.

The new Board had made some efforts to deal with the harassment. For instance, the Board sent notices to all members (instructing against vandalizing the property) and ultimately sent a further notice against the specific postings. The Board also relocated two security cameras and installed twenty-two fake cameras. The Board also offered mediation to some of the members affected by the postings. At the same time, the Board had asserted that there was only so much that could be done, because the culprits could not be identified.

The Human Rights Tribunal said that the Board’s efforts were not enough, and held that the Board was in violation of its obligations (under the Human Rights Code) to take reasonable steps in the face of such harassment.

The Tribunal noted that the Co-op had no harassment or discrimination policy, and also no training in relation to such matters. But, more importantly, the Tribunal said that the Board had failed to respond properly to the particular incidents. Here’s the key extract from the decision:

In my view, the formal processes and policies that a housing provider may have in place are less important than what it actually does once it receives a complaint of harassment. Whether the respondent’s reaction to complaints of harassment was reasonable, depends, as noted, on the unique circumstances of each case. One of the unique and obvious characteristics of this case was that the harassment experienced by the applicants was egregious and persistent. In this context, the evidence does not support the respondent’s contention that it took the matter seriously or addressed it with a sense of urgency. In my view, the respondent’s most significant failure was the complete absence of communication with the applicants. In my view, when a respondent receives a human rights complaint it should acknowledge the complaint, assure the complainant(s) that the complaint is important, and that action will be taken to address it. In ongoing situations such as this one, a respondent should maintain contact with the complainant(s) and keep them apprised of the actions the respondent intends to take. Such communication is particularly important in the housing context, where a housing provider does not have control over the residents and therefore has limited ability to investigate and address complaints. An employer, by contrast, can compel its employees to participate in investigations and may take action even when investigation results are inconclusive. In cases of surreptitious harassment, such as this one, it may not be possible to catch the culprit, but the victims must be assured of their right to live in an environment free from discrimination and harassment. The evidence was that the Co-op never contacted the applicants about the flyers.

The Tribunal awarded each complainant $3,000 to compensate for the failure of the Board to adequately investigate and address the complaints. The Tribunal also ordered the Board to inform all members of the Co-op about the award and to post copies of the decision on the Co-op bulletin boards for a period of six months.

In my view, there is a real possibility that these same concepts could be applied to a condominium corporation. For these purposes, Co-ops and condominiums are very much analogous.

Of course, the obligations under the Human Rights Code are only triggered in cases of harassment on prohibited grounds of discrimination. Note, however, that a condominium corporation may have separate obligations to address many types of harassment on the condominium property, because of the corporation’s duties (in Section 17(3) of the Condominium Act) to take reasonable steps to enforce the Condominium Act, and the corporation’s declaration, by-laws and rules. Even if harassment does not involve prohibited grounds under the Human Rights Code (so that a claim to the Human Rights Tribunal is therefore not a possibility), harassment may often violate Section 117 of the Condominium Act, or provisions of the corporation’s declaration, by-laws and rules.

To read more about human rights issues in condominiums, see our previous blog post on human rights insurance.

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