Libel & Defamation; The Verdict of The Supreme Court of Canada

 In general, lawyers who convey to Condo owners threats of “Cease-And-Desist” followed by a stern warning to keep your mouth shut about the shortcomings of The Board of Directors and/or The Management Company, do so with a condescending attitude based on the assumption that the Condo owner is nothing short of an idiot who has no clue about the rules and regulations of the realm, and The Supreme Court of Canada, for a Condo owner, is the newest brand name of a chocolate bar introduced to the Canadian market.

Often, lawyers do not take into consideration the fact that a Condo owner may not have a fancy professional designation at the end of his name, such as a juris doctor (J.D.) or bachelor of laws (LL.B), but that doesn’t necessarily mean that the Condo owner lives in an information vacuum dominated by an ignorance of the laws.

A lengthy introduction to highlight the fact that journalists, and Public Interest Bloggers (PIB), cannot perform their duties without understanding the scope of their obligations and the legal ramifications of their publications. We do not need the derision of lawyers, nor intimidations to realize that we face “Serious Risks”, often with dire consequences, especially when confronting law firms and corporations with deep pockets that can easily destroy a Public Interest Journalist (PIJ)/Blogger with lengthy lawsuits designed to bankrupt the person, and force him/her to refrain from revealing the truth about Corporate corruption, unethical modes of operations, and sheer contempt of the collective good by a culture of greed obsessed with profit.

We carry our mission with courage, and for us “Courage is not the absence of fear. It is the dedication to make the right move despite the presence of FEAR.” Our fears have been partially alleviated by The Supreme Court of Canada, when the highest Court in the realm declared in 2009 that Journalists/Public Interest Bloggers (PIB) can use the defence of "Responsible Communication" when facing defamation/libel law suits.

In a nutshell, The Supreme Court of Canada declared that a Journalist or a PIB can be absolved from any liability (a) if an attempt was made to verify the facts, and (B) the published material is a matter of public interest.  

Of course prior to publishing an article, I do solicit the opinion of the parties allegedly involved in wrongdoings, and I do consider the issues I promote through my articles as matters of “Public Interest”, because undeniably for almost 90% of Condo owners, their apartment/property is the biggest investment of their lives. Board of Directors and Management Companies adopt measures an decisions that can have a very serious impact on the biggest investment of a Condo owner, thus the vigilance and the need to hold the 4th Government, The Board, accountable for any neglect of duty that may endanger life and property.

Without freedom of speech we cannot seek accountability. Without accountability power can become blind, destructive, and used and abused for the profit of the few at the expense of the multitude facing the risk of losing their biggest investment that required decades of hard work to reach the “Mortgage Free Dwelling” status. 

n.b.
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How Politicians Betrayed Democracy

Almost 2 years ago, two letters reproduced below this article, were emailed to two key figures in The Provincial Government. Both letters were treated with indifference. Changes were made to “The Condominium Act”, but one thing remained unaltered; more than 1 million Condo owners in Ontario are still governed with an iron fist by “The Condo Industry”, always ready to sacrifice the most sacred principles of our democracy to protect its vested interests.

Sir Winston Churchill is known to have said that the biggest threat to the freedoms we enjoy in a democracy, is not the strength of those intent on destroying our institutions, but the appeasers who are obsessed with peace even if it is purchased by trampling on the fundamental rights of innocent victims. In several speeches he argued that "...the appeaser is one who feeds a crocodile innocent victims, hoping it will eat him last."

Politician in Queen’s Park have been appeasing The Gods of corporate fanaticism one innocent Condominium owner at a time hoping that our freedoms will somehow survive the greed that knows no limit. I am absolutely convinced that we are making a tragic mistake.

Read the two letters and shape your own conclusions. Please note that changes have been made to the  original emails to protect the identity of the writer and the identity of all the other parties involved.

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To: kwynne.mpp@liberal.ola.org
Subject: Letter To The Minister
Date: Thu, 13 Mar 2014 16:53:15 -0400

The Honorable Kathleen Wynne,

Premier of Ontario

795 Eglinton Ave E. S101

Toronto, ON M4G 4E4

March 13, 2014

Dear Premier,

The following letter was emailed to Minister Tracey McCharles, who is currently reviewing the Condominium Act 1998, in an attempt to strike a balance between individual rights and collective well-being.

It seems that she is unaware that the Province of Ontario has a government within the government that is more powerful than the Federal Parliament, and can suspend the protection extended by the Charter of Rights and Freedoms to every Canadian, and not much can be done to stop the damage this hidden government, made up of property management corporations and Condominium Boards, is inflicting on our fundamental rights and freedoms.

In a democracy like Canada, where our children are taught from a young age that legislative power resides with the elected representatives of the people, no corporations should be given the privilege to undermine the Charter of Rights & Freedoms to protect questionable vested interests, every time they are the subject of a scrutiny by the freedom of opinion and the freedom of speech.

 If Ontarians are unable to enjoy the full protection of The Constitution and The Charter, because The Provincial Legislature is powerless to stop the abuses of powerful private corporations, perhaps we should seek the help of The House of Commons, and the intervention of The Federal Government. And if Federal elected officials are willing to tolerate the abuses of private corporations, then we should go to the court of public opinion and remind our nation that, from 2002 to 2011 we sacrificed 158 men and women of our Armed Forces to save Afghanistan from the clutches of religious fanaticism, and spread democracy to build a brighter future for that nation, while ironically we allowed the growth, in our own midst, of a local brand of corporate fanaticism that knows no boundary in its quest to safeguard its greed.

Respectfully yours,

…………………………

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To: tmaccharles.mpp.co@liberal.ola.org
CC: consumer@ontario.ca
Subject: Letter To The Minister
Date: Sun, 9 Mar 2014 12:27:23 -0400

Attn: Minister Tracey MacCharles,

Ministry of Consumer Services

6^th Floor, Mowat Block

900 Bay Street

Toronto, ON M7A 1L2

March 09, 2014

Dear Minister,

In many international forums and political institutions, scholars, jurists, and academics proudly credit the Canadian John Peters Humphrey, born on April 30, 1905 in Hampton, New Brunswick as the architect who drafted “The Universal Declaration of Human Rights” adopted unanimously by The UN General Assembly on  December 10, 1948, based on the strong belief that without basic fundamental rights, humanity will remain extremely vulnerable to tragedies imposed by totalitarian regimes who destroyed more than 50 million lives during World War II.

John Humphrey was a firm believer in the notion that without freedom of expression and unhindered dissemination of views and opinions, democracies will remain vulnerable, and no progress can be achieved in the realms of science, art, and the political discourse to build a just society, without proper safeguards to protect freedom of expression. His personal convictions were clearly integrated in Article 19 of The Universal Declaration Of Human Rights, where he passionately insisted that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

When our lawmakers forged The Canadian Charter of Rights & Freedoms and made it an integral part of The Constitution Act Of 1982, John Humphrey’s legacy and influence was clear in the following fundamental freedom closely protected by the laws of the realm: 2.(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

To my knowledge the fundamental rights of Canadians were suspended three times by elected members of the Federal Parliament who invoked the “War Measures Act ” in WWI, WWII, and The October Crisis of 1969/1970. No matter how closely you scrutinize our laws (Federal, Provincial, Municipal), nowhere will you find an article that says “A Condominium Corporation can suspend the fundamental right of freedom of expression of a Canadian, if his views are detrimental to the vested interests of The Board of Directors of the condominium”.

Unfortunately, all over the Province of Ontario, Condominium Corporations suspend the fundamental right of freedom of expression by using Corporate By-Laws and an army of “High End” Bay Street lawyers to intimidate condo owners and silence their dissenting voices. Yes Madam Minister, reality sounds stranger than fiction but allow me to explain the context of the ordeal I have been facing for the last few weeks, and then you will understand what kind of a monster The Condominium Act, 1998 has created.    

I live in condominium building under the control of a Board of Directors and a management company that provides legal advice to The Board and runs the day-to-day affairs of the building. Each year (in the month of March) elections are held during the annual general meeting (AGM) of the corporation. Nominations are accepted in the month of January, and those who fail for a number of reasons to register their names, can nominate or be nominated by other owners during the AGM. Due to a mysterious mishap that the management company failed to explain, I did not receive my notice of election/nomination in January. I was forced to join the election race late at the end of February. To reach other unit owners in the building and inform them about my candidacy and the electoral issues that I would pursue if successfully elected to The Board, I distributed printed election related materials on two occasions, thinking that I live in a country where freedom of association and freedom of expression are fundamental rights not subject to threats and limitations imposed by a management corporation.

On February 24, 2014 I received a letter from the management corporation advising me in a polite manner 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).”

In a follow-up email I was advised by the Senior Property Manager that in the future, before distributing any printed material in the building, I have to submit a letter of intention to The Board with the exact copy of what I plan to distribute to my fellow unit owners, and wait until The Board reaches a decision. The Board holds meetings once a month, thus it cannot guarantee any time frame for the response.

I am not a legal expert but in my understanding the word “Business” means a transaction between two parties involving a material gain in exchange for a service or a product. An election campaign does not fall within the scope of the corporation By-Law XII, nor should it be used to suspend the fundamental freedoms of speech and association of a unit owner, simply because for several years he has been an outspoken critic of The Board.

My story proves to Federal lawmakers that members of a condominium’s Board of Directors, in their blind totalitarian dedication to defend their personal interests, with the help of “High End” lawyers have devised means and methods that outwit every single safety net we have to protect our fundamental rights. The election incident mentioned above was not the first time I had received letters from the management company threatening legal action or letters from the law firm retained by The Board to shut me up or face the dire consequences of a lawsuit.

Bay Street “High End” lawyers call such lawsuits launched on behalf of Condo Boards "SLAPD”-Strategic Lawsuits Against Public Participation. SLAPP court procedures are legal actions launched for the primary purpose of shutting down criticism directed at Condo Boards, and carry an extremely weak and highly questionable cause of legal action. The plaintiff's goal in a SLAPP is not to win the lawsuit, but is rather to silence a critic/defendant/condo owner by engaging him/her in a war of attrition designed to instill fear of large legal costs tied to the terrifying specter of losing a home in the process of resisting the onslaught of a Board whose members, with a stroke of a pen, can replenish their operational funds by imposing extra payments on top of existing monthly fees. Despite their right to free speech, condo owners are frightened into silence without any resistance, thus leaving the gates wide open for Board members to engage in any form of abuse of power without any hindrances.

Dear Minister, unless you introduce serious changes to curtail the power of Condo Boards to suspend the fundamental rights of Canadians, as a society we will become the objects of serious ridicules, when we preach to other countries or international institutions, to respect “The Universal Declaration of Human Rights”, and especially freedoms of expression and association. Countries with dismal records of human rights abuses will point to us that we will have to clean our own backyard, before expecting others to adhere to Canadian or International Human Rights Standards. After all, if private corporations can suspend fundamental rights of Canadians, such as freedom of expression, it is the solid evidence that there is something drastically wrong with the moral compass guiding our society in general and our lawmakers in particular, and thus we should refrain from preaching to others what we ourselves failed to protect.  

I hope while you are currently considering the overhaul of “The Condominium Act, 1998”, you will honor the legacy of John Peters Humphrey, and The Supreme Court of Canada, who on several occasions declared that:“In a truly free society, we should prefer to accept the potential hurt free speech can cause for the sake of safeguarding free speech. The regulation of free speech is worse than the hurt it can cause.”

Respectfully Yours,

…………………………

Admin “The 215 Forum” © 2016 

Freedom of Speech & Defamation

At the end of our previous article (April 02, 2016) we issued the following warning to our readers: “…do not defame the reputation of the person in a position of authority simply because he/she failed to meet certain expectations.” 

In order to understand and abstain from defaming the reputation of an individual or an identifiable group of individuals, we need to understand the legal concept known as “DEFAMATION”. It has two key components: 
A) Libel is a defamatory statement that is made in writing, print, electronic format, or any other method that produces a permanent record. 
B) Slander is a defamatory statement that is spoken or involves gestures, symbols, and signs that can harm a person’s reputation. 
Bloggers cannot engage in any form of responsible writing if they fail to understand their obligations under existing Canadian Defamation Laws.

Canadian Courts have often classified an article in print form as “libelous” or defamatory, if a judge discerned in the written text false statements, lies, or fabricated claims and the content of such a text inflicted a measurable damage on a person's reputation or financial resources.

To protect the sanctity of freedom of speech guaranteed by The Canadian Charter of Rights and Freedoms (a.k.a. The Charter) and entrenched in the Constitution of Canada, judges have pointed out in their verdicts that “Statements that are damaging and true are not defamation.”

For example, let us dissect a fictional situation. You are sitting in a coffee shop sipping your favorite latte and reading “The Toronto Sun” left behind by a patron. All of a sudden you see the familiar name of a neighbor who lives in your condo complex and happens to be a Board member. You want to cover all the details meticulously so you focus closely on the title “Drugs Seized At Pearson Two Arrested”. In the text you see the name, age, and profession of your neighbor who has convinced you years ago that he is a very successful real estate agent, but due to mysterious reasons he decided to sacrifice his reputation, and launch a new business venture in the field of coordinating the supply and demand of drugs in The City of Toronto. 

YES, you can go home and fire dozens of emails to your neighbors who should know what kind of a person is living in their midst, and you may want to promote his ouster from The Board of Directors of your condominium because of the nature of the crime allegedly committed, but chose your words wisely. What you read in the newspaper is nothing but an “allegation”. Nothing has been proven beyond a reasonable doubt in a court of law. You still have a moral and legal obligation to balance your freedom to voice a concern with adequate safeguards to prevent a permanent harm to the reputation of your neighbor who is also a Board member. 

NO, your neighbor does not have a reasonable chance of obtaining a favorable verdict in a lawsuit accusing you of libel. A judge will dismiss it from the early stages of the game for several reasons:
A) He destroyed his own reputation by engaging in a criminal activity-importing illegal chemicals/drugs.

B) In a December 2009 decision, The Supreme Court of Canada said that journalists/bloggers/twitters should be able to report statements and allegations if there’s a public interest in distributing the information to a wide audience, especially if the news was urgent, serious, and of public importance, and the journalists/bloggers used reliable sources, and tried to get and report the other side of the story.

However, bloggers beware of a danger that has spread its tentacles during the last decade and managed to silence a dozen of bloggers/Condominium Owners in The City of Toronto by relying heavily on SLAPP “Strategic Lawsuits Against Public Participation”. Slapp’s primary purpose is to suffocate any form of criticism centering on publicizing the shortcomings of a Condominium Board of Directors. Without any valid legal premise, The Board because it has access to huge financial resources, instructs a lawyer to launch a defamation lawsuit against a blogger, while being well aware that the chances of succeeding are extremely slim and sometimes non-existent. By peddling to the blogger a gloom and doom scenario of the heavy financial burden he has to shoulder in case he wants to challenge in a court of law the unreasonable allegations of The Board, and fearful of a guaranteed financial ruin, the blogger surrenders to The Board and shutts down his blogging site. So measure twice, cut once.

LEGAL NOTICE:

This article should not be relied upon or construed, implicitly or explicitly, as an individualized legal opinion/advice on the issue of defamation. Readers should seek the legal opinion of a lawyer who specializes in this specific domain. The article is strictly for educational purposes, with the key objective of emphasizing the cardinal role of maintaining a balanced approach when criticizing a Condominium Board or a Management Company that acts as the executive arm of The Board.

Admin “The 215 Forum” © April 06, 2016  

From Print To Electronic Format

Based on several factors and developments that have affected our building during the last few months, a decision was reached to stop the publication of the “The 215 Forum” © in the print form, and a switch was made to channel the views of unit owners who reside in building 215 in an electronic form.

Though it tries to articulate the grievances, opinions, suggestions of a group of owners who formed an alliance, this new blogging site remains widely open to any unit owner in building 215, and strongly encourages any resident of 215 including the 5 Board Directors (regardless of his/her membership in The Alliance) to voice from this electronic platform any concern they may have. Needless to say that the issue/s must represent a collective concern such as, but not limited to, safety, skyrocketing unsustainable monthly maintenance fees, bad or good services provided by the management team etc… 

What are the key principles/values that we advocate? As an alliance/movement we strongly believe that one of the cardinal mistakes an individual or a group of decision makers can make is to ignore or deny the fact that human beings are fallible. In other words we reject the claim that decisions made in a group setting are infallible. We reject also the principle that since its completion our building was ruled by successive Boards in a Top-Down form of governance, and it should remain so. We strongly believe that healthy, evidence-based criticism can introduce lots of positive changes, and pave the way for a higher standard of transparency and better management of the $2.000.000 million dollars currently targeted by The Board to cover the needs of the building during the fiscal year of 2015/2016. 

We advocate the principle that wisdom is recognizing that you don’t know everything, and ineluctably accept the possibility that your biases can force you to exclude more efficient options. We strongly support the argument that The Board instead of exclusively listening to the “Experts” of the “Condo Industry” should listen also to unit owners, because “Where no counsel is, the people fall, but in the multitude of counselors there is safety.” (Proverbs XI:14)

We encourage the active and direct involvement of unit owners in The Annual General Meetings (AGM), and after several years of intense effort to promote physical attendance, instead of using proxy forms, we still can’t understand how apathy can successfully prevent more than 50% of unit owners from showing a rudimentary interest in protecting the most valuable asset we have as property owners-our home.

This blog site will introduce regularly issues, concerns affecting the building. But we will focus also on articles (legal, condominium industry news…) published in the Canadian media about the experience of other Condo owners in the country at large, after all the more knowledge we have the better equipped we will be to protect our homes. One crucial fact, that every unit owner in the building should focus on while reading articles published in the Canadian media, is that the views expressed in the article represent the opinion of the author who wrote the article, and does not necessarily enjoy the support of the Owners Alliance.

In the near future, we will outline the basic rules all unit owners must follow while blogging on this site, because under currently existing laws and regulations, freedom of expression in a democracy does not mean you are free to make unfounded accusations, and remain beyond the reach of the law. YES, you are entitled to have an opinion about the performance of The Board or the management team, and NO democracy does not entitle you to hurl unfounded accusations, and unless you respect certain limitations imposed by the laws of the realm, you can face lots of legal troubles especially when your unfounded allegations damage the reputation of an identifiable party.

As a blogger adhere to the following strict rules:
Do not invent stories. Before reaching this blog site to express a grievance, contact in writing the management team, use a civilized language and make a sincere effort to reach a mutually acceptable resolution. Document properly the position of the person who addressed or refused to address your concern. Then, inform us about the difficulties that paved the way for your disappointment. Concentrate on events, ideas, and suggestions that failed to resolve your problem, but do not defame the reputation of the person in a position of authority simply because he/she failed to meet certain expectations.
More details will be published in the near future about the principles of exercising freedom of expression without damaging in the process the reputation of others.

Admin “The 215 Forum” © April 02, 2016