The communal nature of condo living presents both challenges and rewards to owners, residents, directors and property managers. One of the greatest challenges is dealing with a difficult resident whose behaviour disturbs others and where such conduct rises to the level of harassment.
This article will examine a series of three cases that address an issue many condos have unfortunately faced, harassment by a resident, and conclude with five key points to consider when dealing with a difficult situation.
The first case is Metropolitan Toronto Condominium Corporation No. 797 v. Korolekh, which is notable as one of the few cases in which a court has ordered an owner to sell their unit.
The owner in Korolekh began a campaign of harassment against other residents, neighbours and property managers shortly after moving in. This behaviour included physical assault, the use of racial and homophobic slurs, cutting neighbours cable lines, watching other owners in the privacy of their home, blaring loud music and using her 150 pound dog to intimidate other residents.
In the face of this behaviour, the corporation commenced an application against Ms. Korolekh seeking, among other things, an order that she be forced to sell her unit. Importantly, the corporation based its application on Section 117 of the Condominium Act, 1998 (the “Act”), which provides that:
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.
Framing the application under Section 117 permitted the Corporation to avoid mandatory mediation provided for under Section 132 of the Act, as mediation does not apply to contraventions of the Act itself. While mediation should be used when there is a reasonable chance that it will resolve issues, it is likely a fruitless exercise in the face of egregious ongoing behaviour such as Ms. Korolekh’s, and this was noted by the court.
Korolekh is also important as it is one of the first cases in which Section 117 is considered in detail by a court. In this case the court had numerous affidavits setting out behaviour that likely constituted criminal activity, from actual physical assault, such as striking another owner in the throat, to criminal mischief, such as cutting cable lines and killing neighbour’s plants.
Ms. Korolekh was not only an extremely unpleasant neighbour, she was a violent and dangerous one and the court found no difficulty in finding that her behaviour contravened Section 117.
The relief granted in the case, namely an order that Ms. Korolekh sell her unit, is quite rare. The extreme nature of Ms. Korolekh’s behaviour and the fact that it was only in the face of almost 5 years of this behaviour that Ms. Korolekh was forced to sell her unit must be emphasized.
The court described this order as “extraordinary relief” and “draconian”. While the court noted there are likely other cases, only two other reported instances, in 1994 and 1997, could be found where an owner was ordered to sell their unit at the time that the order was made. Even with the overwhelming evidence that the Corporation presented, the court was still reluctant to grant the order.
The court described the situation as a “perfect storm” justifying such an order, where the conduct was serious and persistent, where it had an exceptionally large impact on a small community, and where the owner was incorrigible and unmanageable.
The second case is Toronto Standard Condominium Corporation No. 2395 v. Wong. This case is notable as the corporation sought the involvement of the Public Guardian and Trustee. As is sadly often the case in circumstances of disturbing behaviour, there were serious questions over Ms. Wong’s mental stability.
Ms. Wong began a pattern of behaviour that started as strange and escalated to the point where it became threatening and dangerous. At first Ms. Wong made bizarre accusations of the corporation’s staff entering into her unit and damaging her belongings.
These actions escalated at an annual general meeting where Ms. Wong shoved a camera in the face of different owners, taking their picture. After Ms. Wong grabbed a member of property management and tried to forcibly turn her around to take her picture Ms. Wong was ejected from the meeting.
Following the annual general meeting, Ms. Wong’s conduct towards members of property management became increasingly threatening. On one occasion Ms. Wong tried to force her way into the management office while a staff member was trying to close the door, kicking on the door and acting in a threatening manner.
The corporation hired additional security and adjusted schedules so that members of property management would not be present on the property alone, but unfortunately a member of property management that Ms. Wong specifically targeted was ultimately forced to request a transfer.
Given Ms. Wong’s behaviour, the corporation sought the intervention of the Public Guardian and Trustee, to have Ms. Wong undergo a mental examination and to have a litigation guardian appointed for Ms. Wong.
The court would not order Ms. Wong to undergo a mental examination or appoint a litigation guardian, explaining that there must be strong direct evidence that an individual is not capable of understanding the information before the court to make decisions or that they are unable to appreciate the consequences of their action.
In other words, strange or disturbing behaviour is simply not enough for the court to intervene when there is a question of mental stability and the court considers appointing a litigation guardian to be an “invasive and rare order”.
The court did not, however, have any difficulty in finding that Ms. Wong’s behaviour contravened Section 117 of the Act and the Corporation’s declaration and rules. The court emphasized that dangerous behaviour under Section 117 includes psychological injury such as fear and intimidation. The court also found that Ms. Wong’s behaviour constituted workplace violence and harassment and was in contravention of the Occupational Health and Safety Act.
The Corporation was ultimately successful in obtaining a court order that Ms. Wong was prohibited from having direct or indirect contact with any employee, staff or member of the board and had to maintain a certain physical distance from those individuals and the management office.
The third case is York Condominium Corporation No. 163 v. Robinson. Unlike the previous cases there was no physical intimidation or a question of the mental stability of the owner in question, but rather an abusive owner who constantly made complaints. The court found that these complaints were partially based on valid grounds but expounded by their rude tone and repetitive nature.
Ms. Robinson was deeply concerned about the governance of the condo, its maintenance and the performance of its staff. Ms. Robinson, however, would email property management almost every day criticizing management’s operations and repeatedly made personally degrading comments in these messages.
Property management had tried to find ways to deal with Ms. Robinson, such as limiting her communications to email, and the Corporation had prohibited her from attending at the office in person, as she would verbally abuse the staff.
While the subject matter of Ms. Robinson’s complaints were sometimes justifiable, such as a lack of hot water or broken doors, the court noted that she never sought remedies for these issues, but rather seemed to be complaining for the opportunity to insult and degrade property management. The court found that Ms. Robinson’s conduct was simply directed ongoing harassment, which made life intolerable for property management.
While there was no suggestion of any violence or physical abuse, the court again found that Section 117 of the Act includes psychological harm and that it includes both verbal and written forms of abuse. Similar to Wong, the court also held that Ms. Robinson’s behaviour constituted workplace harassment and was in contravention of the Occupational Health and Safety Act.
The court noted with approval that the corporation did not ignore Ms. Robinson, nor was it seeking to silence her through its application, rather it simply wanted her to correspond with property management in a civil, non-harassing manner.
On that basis, the court ordered that Ms. Robinson cease any uncivil conduct and refrain from abusing, harassing, threatening or intimidating any employee of the corporation in writing.
Robinson shows that ongoing harassment, even if by email, can be considered as dangerous activity by the court and that legal intervention can and should be sought in the face of a campaign of harassment.
Considering Korolekh, Wong and Robinson together we suggest that the following five points should be kept in mind when addressing harassment by an owner:
- Courts are willing to find that a range of harassing and threatening behaviour constitutes a dangerous activity under Section 117 of the Act. This can include psychological intimidation and does not have to be a physical confrontation or in person verbal abuse, campaigns of harassment by email can rise to a level requiring court intervention.While it was an extreme case, a quote from the decision in Korolekh illustrates one court’s view on condo living:“People join condominium corporations voluntarily on the basis that they agree to share collective property and to abide by a set of rules and obligations that protect the collectivity. There is no right to continue membership in this corporation or this community, once a clear intention to harm it and a persistent refusal to abide by its rules have been exhibited.”The degree of harm and persistent negative behaviour must rise to a high level before a court will grant extraordinary relief, but the communal living aspect of condos is well recognized.
- It is important to document incidents and try other enforcement measures before commencing court proceedings, unless extreme circumstances justify immediate action. Documenting incidents ensures that adequate evidence can be presented to the court if litigation becomes necessary. Creating and maintaining a record of incidents will provide an overview of an offending resident’s behavior and show the pattern of abusive conduct.Other measures, such as notices from property management or enforcement letters from the corporation’s legal counsel should also be attempted first when justified. Courts often take a dim view of parties that proceed straight to court, and prior notices and letters can be key evidence of the steps taken before commencing litigation.
- The safety and well being of the corporation’s staff must be ensured. Harassment and intimidation of staff is not only contrary to the Act but also contrary to the Occupational Health and Safety Act. A variety of measures can be taken, from requiring an owner to not attend at the management office for a period of time and making all requests by written correspondence, to providing extra security and ensuring that staff are not left alone on site in more extreme cases of harassment.
- A corporation should not ignore unit owners, but should develop alternatives to address their concerns while keeping staff safe and secure. While in extreme circumstances this may not be a realistic possibility, in Robinson the court noted with approval the attempts by property management to continue to deal with the owner despite her rude and harassing behaviour.While harassment and intimidation is never acceptable and no individual should be subject to such treatment, trying alternative ways of dealing with difficult residents can either help to resolve issues, or will at the least be looked on favourably by a court later.
- Expectations of possible outcomes must be reasonable. Ordering an owner to sell their unit has been described as a “draconian” remedy and courts are extremely reluctant to grant this type of relief.Having a tenant evicted is almost as difficult, as the Landlord and Tenant Board prefers all options to be exhausted before ordering the termination of a lease. In most cases, a history of bad conduct and refusal to abide by restrictions, and even court orders, will have to be established before a court will consider ordering the sale of a unit or termination of a tenancy.Obtaining the order of a court to sell a unit or terminate a tenancy requires a “perfect storm” of factors; such as repeated violations, a great impact on the larger community, and an owner who has shown that they refuse to change their behaviour before extraordinary remedies will be seriously considered.
In the end, condominium directors and residents must understand courts will balance the communal aspects of condo living, including its disruptions, against the long standing legal priority of allowing people to own and reside in the place of their choosing.
Prepared by Justin McLarty