Decisions From the Courts BY ROHINA HASHIMI & FRANCESCO DEO

Rohina Hashimi Student-at-Law Deo Condominium Lawyers Francesco Deo Lawyer Deo Condominium Lawyers

Case Law Update

Harassment and aggression in condominium corporations has been the subject of some recent decisions from the Ontario Superior Court of Justice. The Court has outlined and further clarifed the remedies available to condominium corporations when dealing with hostile and aggressive conduct by residents towards board members, property management, or other residents in contravention of section 117 of the Condominium Act, 1998 (the “Act”).

TSCC 2519 v. Emerald PG Holdings et al., 2021 ONSC 7222 In TSCC 2519 v Emerald PG Holdings et al., Toronto Standard Condominium Corporation No. 2519 (“TSCC 2519”) brought a motion for a compliance order and a restraining order against a corporate unit owner, Emerald PG Holdings (“Emerald”), the individual owners of Emerald, Mr. Eroltu and Mr. Campione, and an independent contractor of Emerald’s corporate tenant, Mr. Thomson (collectively, the “respondents”).

TSCC 2519’s documentary evidence and witness testimony demonstrated a pattern of harassing and aggressive conduct in the form of email communications, telephone calls, and physical interactions between the respondents and members of the board of directors, unit owners, and the property manager within a four-year period. Within several of these interactions, Mr. Eroltu and Mr. Thomson would threaten to sue TSCC 2519 board members or unit owners personally if they failed to comply with the demands of the respondents. Specifcally, Mr. Eroltu and Mr. Thomson would threaten legal action against certain board members if they ran for election to the board. Threats of legal action were made against unit owners who voted or otherwise supported certain candidates of the board. After repeated incidents of aggressive conduct from Mr. Eroltu and Mr. Thomson, TSCC 2519’s property manager felt it was necessary to be accompanied by a security guard to her vehicle.

In looking at section 117 of the Act (i.e. “no person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual”), the Court once again noted that the term “injury” includes psychological harm that is beyond a trifing nature. The burden of proof rests on the moving party to prove, on a balance of probabilities, that the conduct of the respondent was likely to give rise to psychological harm that is of more than a trifing nature. In this case, the Court found that Mr. Eroltu and Mr. Thomson engaged in conduct that was intimidating, bullying, and abusive. The Court accepted the evidence of the unit owners and board members who claimed that they felt threatened, intimidated, and mistreated by the conduct of Mr. Eroltu and Mr. Thomson, noting that the conduct reasonably gave rise to an apprehension of fear.

The Court also held that the respondents violated TSCC 2519’s declaration by unreasonably interfering with the use or enjoyment of the units and common elements by threatening legal action against board members. Importantly, the use and enjoyment of the units and common elements includes the right to participate in the governance of TSCC 2519 without fear of reprisal.

Further, the Court found that the verbal abuse, physical intimidation, accusations of wrongdoing, and other conduct by Mr. Eroltu and Mr. Thomson constituted workplace harassment within the meaning of the Occupational Safety and Health Act.

Among other orders, the Court granted a compliance order against Emerald, Mr. Eroltu and Mr. Thomson requiring them to comply with the Act and TSCC 2519’s governing documents as well as an interlocutory order restraining Emerald, Mr. Eroltu and Mr. Thomson, from soliciting proxies of unit owners for owner’s meetings. Costs of the motion were payable by Emerald on a full indemnity basis and recoverable as a common expense.

York Condominium Corporation No. 188 v. Chaudhry, M. et al, 2021 ONSC 7027 In York Condominium Corporation No. 188 v Chaudhry M. et al, the Ontario Superior Court of Justice was asked to determine whether the conduct of an adult occupant violated section 117 of the Act and whether the occupant’s parents (the unit owners) failed to take reasonable steps to prevent their son’s misconduct.

A court order had previously been made against the respondents that, among other things, prohibited the adult son from engaging in certain forms of harassing conduct against the staff and directors of York Condominium Corporation No. 188

(“YCC 188”). Notwithstanding the order, the son and, by extension, the parents, continued to engage in similar conduct that was prohibited by the court order.

For example, the son delivered letters to unit owners, members of the board of directors, and the property manager that targeted the Ahmadiyya Muslim community at YCC 188, with allegations that the Ahmadiyya community manipulates and controls the board of YCC 188. This conduct led to several reports received by YCC 188 from unit owners, the property manager, and board members expressing concerns for their safety.

The Court found that the son’s course of communications was likely to cause injury to individuals, particularly, individuals within YCC 188 who are members of the Ahmadiyya Muslim community. The Court ordered, among other orders, that the son was prohibited from occupying any unit within YCC 188 and was prohibited from engaging in any harassing or abusive conduct, either directly or indirectly, towards any representative of YCC 188. However, the Court noted that this case is an extreme case which requires the enforcement of serious measures to ensure compliance with section 117 of the Act.

In analyzing whether costs may be awarded as against the parent unit owners, the Court held that the parents failed to take reasonable steps to prevent their son’s missafety, YRCC 794 found it necessary to arrange for additional security in the building. YRCC 794 eventually brought an application to the court for an order requiring the occupants to, among other things, vacate the unit and refrain from attending at the property.

In conducting its analysis on whether the respondents breached section 117 of the Act, the Court noted that YRCC 794 is entitled to bring an application directly to the court as subsection 134(2), which requires the exhaustion of the mediation and arbitration routes, does not apply in the case of breaches of the Act itself. The Court also found that the occupants’ behaviour, which included threats of bodily harm and death threats, not only violates section 117 of the Act, but is also criminally harassing.

The Court ordered that the respondents comply with the Act and YRCC 794’s governing documents as well as immediately cease and desist from, among other things, engaging in threatening and harassing conduct or communicating with YRCC 794 staff and residents whatsoever, subject to emergency circumstances. The Court also ordered the occupants to vacate the unit and permanently prohibited the occupants from attending at YRCC 794. Finally, costs were awarded as against the respondents on a full indemnity basis and recoverable as a common expense for the unit. CV

conduct, which is contrary to subsection 119(2) of the Act. The parents had also engaged in harassing conduct towards YCC 188 staff by signing several letters, in their own names, that were addressed to the board of directors. One of the letters that was allegedly delivered by the parents, but signed by the son on their behalf, was shown as copied to the Prime Minister of Canada, the Premier of Ontario, various media outlets, and the “Supreme Head of Ahmadiyya Muslim Community of World”. The court awarded the legal costs incurred by YCC 188 leading up to the motion and the costs of the motion against the parents pursuant to the indemnifcation provision of YCC 188’s declaration.

York Region Condominium Corporation No. 794 v. Watson, 2021 ONSC 6574 In York Region Condominium Corporation No. 794 v Watson, the Court held that the provisions of the Act place a positive obligation on condominium corporations to take steps to prevent a dangerous condition before an incident occurs.

In this case, two of the respondents, who were occupants in YRCC 794, engaged in threatening, harassing and illegal behaviour towards YRCC 794 staff and residents. Their conduct included the communication (both verbally and through emails) of obscenities, racial slurs, and death threats. As a result of the occupants’ threatening behaviour, and in response to complaints by residents who expressed fear for their

1. Be undertaken promptly: Within 90 days or less unless there are suffcient reasons why more time is needed.

2. Be objective: The person in charge of the investigation should not be involved in the incident and should not be subordinate to or otherwise be under the control of the alleged harasser.

3. Maintain confdentiality: Information about the incident or complaint should not be disclosed unless necessary to protect workers or carry out the investigation.

4. Be thorough: Make suffcient efforts to interview the employee who alleges harassment, the alleged harasser(s) and any witnesses. The interview should include specifc questions about the incident or complaint, and the individual conducting the interview should take detailed notes and thoroughly review any documents relied upon by the alleged harasser and the employee alleging harassment.

The consequences of failing to comply with the OHSA should not be downplayed. In this regard, if a condominium corporation is convicted of contravening a provision of the OHSA, the maximum penalty that may be imposed is $1,500,000.

Furthermore, in a prosecution of an offence under the OHSA, any act or neglect of a manager, agent, representative, offcer, or director of the accused condo corporation is deemed to be an act or neglect of the accused condo corporation itself. As a result, this means that if an agent of the corporation (such as a director or property manager) is harassing a worker within the condo, for example, liability fows to the condo corporation. Given this serious situation, I recommend that all condominium corporations that employ or contract for the services of “workers” should consider establishing workplace harassment policies. Such policies should be drafted with the assistance of legal counsel and should set out standards and measures for identifying and addressing complaints of harassment.

While I hope that your condominium will never face this type of problem, you should, at the very least, take proactive preparatory measures to ensure that if harassment arises, you are ready to investigate the complaint and implement a solution. CV Brian Horlick B. Comm, BCL, L.L.B., ACCI, FCCI

Horlick Levitt Di Lella LLP congratulates and welcomes Timothy Duggan and Bradley Chaplick to the frm’s partnership

Tim joined HLD in 2009 as an articling student and then became a standout associate lawyer practising condominium law and civil litigation. Bradley began his career in condominium law at the same time as Tim at a boutique condominium law frm. In 2018, Bradley joined HLD as a senior associate lawyer and now continues as a partner in the condominium law practice group. As great contributors to our team and the condominium community, we are proud to have them as partners.

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