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.
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.
Admin “The
215 Forum” © 2018
