Unwelcome Conduct: Key Takeaways from Friend Decision

23 juillet 2019 | Justin McLarty

( Disponible en anglais seulement )

Special thanks to Sarah DeGenova who assisted with the preparation of this article.

In a recent case, the Ontario Superior Court of Justice provided guidance on the duties that Boards of Directors (“Boards”) and Property Managers have to protect workers from workplace harassment and to ensure there are no unsafe conditions which could cause harm to persons.

In Ottawa Carleton Standard v. Friend, 2019 ONSC 3899, the condominium corporation (the “Corporation”) brought a motion to prohibit Mr. Friend from communicating with and harassing its Directors, their spouses, its own contractors and employees.

Mr. and Mrs. Friend originally purchased a unit in 2006. The Court found that since that time, Mr. Friend has repeatedly exhibited egregious conduct, which “clearly demonstrate[d] the need for court intervention.”

Mr. Friend also verbally abused Directors of the Corporation, refused to abide by Board policies, and on three occasions, used physical force against Directors. As a result, the Directors and their spouses feared for their safety.

In 2013, the Corporation was successful in obtaining a judgment against Mr. Friend for the installation costs of a water meter and outstanding water charges. The judgment was for approximately $18,542. The Court also ordered the defendants to comply with the bylaws and rules of the Corporation.

Mr. Friend was adamant that he and his wife did not owe the Corporation any money, even after the judgment was entered against them and Mr. Friend repeatedly harassed the Directors demanding repayment in full.

In March 2018, the Corporation’s Property Manager wrote to Mr. Friend. The letter highlighted all of the incidences of Mr. Friend’s misconduct. It also informed Mr. Friend that his “ongoing verbal confrontations and abusive behaviour towards Directors would not be tolerated,” and that if his misconduct continued, the Corporation “would consider legal action and would claim full cost indemnity against him.”

In May 2018, the Corporation demanded payment from Mr. Friend in the amount of $9,246 for common expense arrears, failing which a proceeding would be commenced against him and Ms. Friend for relief.

Court Analysis

In the course of its analysis, the Court made a number of observations, which are important for Boards and Property Managers to keep in mind, including the following:

  • “Condominium living… is more regulated as compared to ownership of a single family home. The Act’s creation of condominium Boards of Directors and their authority to make decisions binding on unit owners limits the authority of unit owners as to condominium matters and limits… a unit owner’s personal preference as to what he or she considers appropriate.”
  • “This use of force against [the President of the Board], independent of whether it constitutes a criminal assault, clearly demonstrates the need for court intervention.” This comment validates the Board’s decision to pursue a legal remedy to address Mr. Friend’s conduct.
  • Mr. Friend did not just breach the Corporation’s by-laws and/or rules. His “continuing and prohibited conduct breache[d] the October 9, 2013 court order” requiring Mr. Friend to comply with the Corporation’s by-laws and rules.

Key Take-Aways

Under s. 117 and 17(3) of the Condominium Act, 1998 (the “Act”), Boards and Property Managers have a duty to ensure compliance with the Act and with a Condominium’s governing documents. They also have a duty to ensure that there are no unsafe conditions which could cause harm to persons. This case suggests that in order to uphold their duty under the Act, Boards and Property Managers can apply to the courts for an interlocutory injunction in order to prohibit a unit owner from communicating verbally with employees, contractors, Board members, and the spouses and family members of Board members.

Pursuant to s. 32.0.7(1) of the Occupational Health and Safety Act (the “OHSA”), Condominium Boards and Property Managers have a legal duty to investigate and protect their workers from workplace harassment and to remedy any workplace harassment by implementing and enforcing appropriate anti-harassment policies. It is important to note that in the OHSA, workplace harassment is defined to include “vexatious comment or conduct… that is known or ought reasonably to be known to be unwelcome.” This case serves as a reminder of the need for anti-harassment policies to protect workers from problematic unit owners, such as Mr. Friend.  Condominium corporations should contact their legal counsel to discuss appropriate anti-harassment policies, if one is not already in place.

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