Sunday, 17 June 2018

Small Victory In A Long Uphill Battle

In a previous article titled “How Politicians Betrayed Democracy”, the administrator of this blog advised readers, about the measures that were adopted against him to limit his freedom of expression, especially prior to an annual general meeting, where as an electoral candidate, he distributed door-to-door a set of printed materials highlighting to unit owners the key issues that should be taken under serious consideration during the election.

On February 24, 2014 the administrator received a letter from the management corporation advising him, on behalf of The Board, to “Cease and Desist” from distributing door-to-door printed election materials. The letter invoked the following paragraph from The Corporation By-Law:
 XII. Soliciting
“No business solicitation, canvassing or distribution of flyers either by business or individual, including Residents, is permitted on the property, without the specific permission of the RSO (Resident Services Office).” 

The plan implemented by the management company made it clear, beyond a reasonable doubt, that The Board wants elections to be held in a vacuum of ideas. How positive or negative were the decisions made by The Board during a fiscal year should never be the subject of a scrutiny prior to an election. How much the millions spent on maintenance fees contributed to the collective good or made a rich contractor richer, should never be placed under a magnifying glass and analyzed. In short, all that was required by The Board from a candidate was to stand up in front of his neighbours attending The AGM, provide details about his professional background, and let owners decide if he has the appropriate merits to be elected to The Board. Of course, since 2014 multiple attempts were made in writing to lift the ban, but the Board refused to reverse its position on the ban.

Last week many law firms specializing in defending corporations/Boards and Condominium Management Companies reported an important development centering on a court case (Simcoe SCC Nos. 431 & 434 v. Atkins, 2018 ONSC 3105) where a Board via the legal system solicited the intervention of the court to restrict communication between a unit owner and his neighbours. 

The entire process was the outcome of a special assessment imposed by The Board on unit owners, and a counter attack launched by a unit owner to remove Board members. The person leading the assault on The Board was accused of spreading “Misleading” information to his neighbours, and accordingly The Board believed that a court order was necessary to put an end to the undesirable situation undermining its vested interests.

Justice Copeland acknowledged that the language used by the person leading the fight against The Board was nonconstructive, mean-spirited, and contained personal insults incompatible with a civilized discourse that should take place between the two sides of a conflict.

In her verdict, Justice Copeland underlined the importance of the democratic process in the governance of condominiums and the need for all owners to participate in a “dialogue” not “monologue”, particularly in the case of contentious issues. She pointed out that
 “…Strongly held opposing views are not unusual in democratic governance, but rather, are often part of the process . . . . I urge all members of the community to keep in mind that the purpose of the meetings, the votes, and any discussion leading up to the meetings is to allow members of the community to inform themselves, to discuss the substance of the issues, and then to exercise their right to vote in accordance with the democratic model set up under the Condominium Act, 1998.”

Justice Copeland reiterated and emphasized strongly in her closing argument the cardinal role of civil, calm, and open-minded discussion in condominium communities, and issued an order for costs of $14,000 to be paid by the Corporation to the unit owner. She did not pursue an order to instruct Board members to pay the amount from their own pockets.

A small victory for freedom of opinion and expression in a long uphill battle that affects every condominium community in Ontario. But will it reverse the existing trend of intimidation casually adopted by Boards and their powerful high-end Bay Street lawyers, to silence dissent and criticism by owners who entertain very “unflattering” views about the performance of Board members?

Time will tell.

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