DEAR ACMO:

Q: Recently, I have noticed a trend where a demanding owner launches a WhatsApp group, and we hear reports from other owners in the group that the Management and/or the Board are being badmouthed because they haven’t fulfilled the owner’s often unreasonable expectations. I consider this to be psychologically abusive. How do we proceed in this matter?

A:  Unfortunately, I am seeing the same disturbing cyberbullying trends.  Owners and residents sometimes use social media platforms to defame and launch character attacks against management and the board.  This is all part of a broader, disturbing pattern of harassment against property managers and directors. 

To be clear, owners and residents are, of course, entitled to disagree publicly with management and the board.  They are not entitled, however, to use threatening or abusive language in doing so, or to misrepresent the truth.

The manager and/or directors should save all offending communications for evidence (in the event the postings get deleted).  Also, they should never respond by using inappropriate or insulting language, as this may limit the remedies available.    

A response strategy should be developed between the Corporation and management.  As a starting point, the Corporation (or its legal counsel) should immediately communicate with both the site administrator and those posting offensive content and demand that it be removed, demanding that further harassing communications immediately and permanently cease.  To the extent this demand is not effective, and assuming the Corporation’s governing documents prohibit the harassing conduct, the Corporation has a remedy against the owner through the Condominium Authority Tribunal [in nuisance under section 117(2)].  If the harassment is serious enough, the Corporation could instead bring an application to the Superior Court prohibiting dangerous activities under section 117(1) of the Condominium Act. 

Other civil and criminal remedies are also available to the manager personally, depending on the nature of the “badmouthing”.  A recent Ontario Superior Court Case [Caplan v Atas, 2021] recognized that that our law needs better tools to deal with cyberbullying and created the new tort of “internet harassment”.  Just prior to the Caplan case, the court in Yenovkian v Gulian recognized (for the first time in Ontario) the tort of “publicly placing a person in a false light”.  In addition to these potential civil actions, an action in defamation and intentional infliction of mental suffering could be brought, together with an injunction, to remove existing posts and to prevent further offensive postings.  

From the criminal side of things, there is no provision in the Criminal Code for cyberbullying.   However, the owner may be guilty of criminal harassment (s. 264), harassing communications (s.372(3)), or defamatory libel (s.298).

Deborah Howden is a partner at Shibley Righton LLP in Toronto and is a senior member of the Condominium Law Group.  Her practice at Shibley Righton involves all aspects of condominium law, with some specialized expertise in employment, civil litigation, occupational health and safety, human rights, harassment, the Workplace Safety and Insurance Act, and the Accessibility for Ontarians with Disabilities Act.  Deborah is a certified workplace harassment investigator and sits on various condominium industry committees. 

deborah.howden@shibleyrighton.com

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