If I had a dollar for every time I’ve heard “this is harassment” in response to a letter sent by one of my condominium clients to an owner about a rule violation I could have retired at 26. It seems to be an allegation that is thrown out without much consideration about what it actually means. What does it mean? What obligation does the board have to investigate complaint of harassment? What steps should a board take when it receives a complaint?
Fortunately, recent decisions provide answers to these questions and more.
One such case is Wexler v. Carleton Condominium Corporation No. 28. An owner commenced an action in Small Claims Court against the condominium seeking about $2,500.00, mostly for alleged harassment by the condominium. The condominium argued that it was not harassing her, but taking steps to ensure that she complied with the Act, declaration, by-laws and rules.
The judge reviewed the case law on civil harassment and identified four elements:
· was there outrageous conduct by the defendant?
· did the defendant intend to cause emotional distress to the plaintiff?
· did the plaintiff suffer severe emotional distress?; and
· was the plaintiff’s emotional distress caused by the defendant.
The court found that the owner did not present any evidence of the elements and dismissed her action with costs. The judge said:
The Corporation’s conduct was not outrageous; the Corporation was enforcing the provisions of the Act, the Declaration, the By-laws and the Rules. It was exercising its statutory duties. The Corporation had no intention of causing emotional distress to [the owner], nor did it act with a reckless disregard which could have caused emotional distress to her.
I understand that the condominium asked for over $35,000.00 in costs from the owner, even though cost recovery in Small Claims Court is normally limited to 15% of the amount claimed. The judge found that a higher amount was necessary to penalize the owner for her unreasonable behaviour and awarded the condominium $20,000.00 in costs. This means that at least $15,000.00 in costs will become common expenses all because this one owner felt harassed by the board satisfying its duty to ensure the owner complied with the Act, declaration, by-laws and rules.
Written by Michelle Kelly, Sutherland Kelly LLP and republished with permission. Michelle Kelly practices law in the areas of condominium and real estate. She works with developers, condominiums, and unit owners across Ontario. She provides assistance to her development clients on the creation, sale, and turnover of condominium corporations. She provides assistance to her condominium clients on a range of matters, including unit owner disputes, owners’ meetings, collection procedures (i.e. liens), opinions on declarations, by-laws and rules, and enforcement. For further information or to get in contact with Michelle, you may e-mail her at: firstname.lastname@example.org (Posted on May 25, 2016)