Recent court decisions denounce owners’ abusive behaviour

Wednesday, July 13, 2022 | By Juliet Atha |

It’s hard to imagine that there’s a condo manager anywhere in Ontario who would describe their job as easy. The breadth and depth of knowledge required to do the job well are astounding. The hours are long, and condo managers rarely get to “switch off.” They are never more than a few feet away from their phone, even when taking a shower.

Soft skills are necessary to do the job well, including communication, time management, and people management. On any day, a condo manager can be pulled in many different directions, depending on the latest crisis or deadline.

Casting a shadow over all these challenges to perform is the worry that an owner will file a complaint with the CMRAO against the manager because he or she didn’t like a board decision or how long it took to respond to emails. For some owners who are angry or distrustful of the condo manager or the board, this frustration escalates into actual harassment.

While there are no statistics, anecdotal evidence suggests that almost every condo manager has experienced some form of workplace disrespect, and a majority have experienced workplace harassment. Hopefully, only a very few were subjected to physical threats or assault; but there shouldn’t be any at all.

Condominium corporations have a duty to protect their directors, manager, staff, and owners. There are plenty of stories and increasing court cases and CAT decisions that shine a light on some outrageous behaviour.

Recent court decisions denounce owners’ abusive behaviour

Section 117 (1) of the Condominium Act states: “No person shall, through an act or omission, cause a condition to exist or an activity to take place in a unit, the common elements or the assets, if any, of the corporation if the condition or the activity, as the case may be, is likely to damage the property or the assets or to cause an injury or an illness to an individual.”

In TSCC 2519 v. Emerald PG Holdings et al., 2021, the Superior Court of Justice ruled that injury “includes psychological harm that is beyond a trifling nature.”

The Ontario Superior Court of Justice has also now ruled that the right to accommodate a disability is no longer the ultimate “right” (MTCC 580 vs Mills, 2021). Those in the condominium community also have a right to be protected from harassment or oppressive behaviour.

Workplace safety legislation also protects against harassment. In TSCC 2519 v Emerald PG Holdings et al., 2021, the ruling stated that when a unit owner or owners engage in threats of litigation, intimidation and excessive hostility toward a board and its property management, such actions constitute workplace harassment. The ruling states, “The verbal abuse, door banging, physical intimidation, accusations of wrongdoing, shouting, and micromanaging constitute workplace harassment within the meaning of the OHSA (Occupational Health and Safety Act).

If a condo manager or director is subject to harassment or abusive behaviour, it is vital to keep records of the incidents, either copies of emails or diarized descriptions of the interaction. The corporation should consider seeking legal advice from its solicitor early in the process. Early intervention, a lawyer’s letter to the owner, for instance, may help stop the situation from escalating. It will also demonstrate that the corporation takes the situation seriously and acts promptly to protect its directors and management. It may also be necessary to contact the police.

In extreme cases, the lack of respect shown to managers, the board, or other residents escalates into a messy situation involving the police or the courts. Although it may be a lengthy process, legal tools are available to stop excessive abuse.

Andrea Lusk, a lawyer with Gardiner Miller Arnold LLP, has provided helpful comments about de-escalation.

“A common preamble to written decisions from court or CAT where harassment is alleged is how poor communication or failure to deal with a legitimate request can cause bad feelings,” she says. “These initial bad feelings snowball a non-dispute into a claim of mutual harassment. Often, harassment is not found— just frustration by all sides.”

For example, a slow or non-response to a standard request—for records, maintenance, or enforcement—may cause an owner to then question management and the board. That owner may then consider communicating their displeasure to fellow owners or to management, repeatedly. When we get past the “normal complaints” stage, the owner and the condo are put onto two sides, and many get trapped in those roles. What could have been a short response has now turned into exponentially more work for the manager? If the condo’s lawyer has to get involved, it escalates.

Absent an actual physical threat or emergency, many items presented as “urgent” can probably wait a day, or a week, and be dealt with in due course with no hard feelings. It’s best practice to acknowledge a request, what must be done to address it and communicate the timeline to the person making the request.

Diarize the timeline for yourself. If you have communicated a reasonable timeframe for a response (even saying “the board meets once a month, this is on the agenda and I will reply to you after their next meeting” or “we’ve called the contractor, we will let you know when they get back to us”) you have done what you can on that item until you have more information. Continue to communicate progress but otherwise keep your boundaries.

The underlying foundation of some of the abuse and harassment that a condo manager or director experiences is the general lack of respect for the work they do.

A recent Ontario Superior Court ruling (Niagara South Condominium Corporation No. 12 v. Kore et al., 2021) contains a very astute observation, “It comes down to respect: Respect for the rules. Respect for employees, the board and one’s neighbours. Respect for the common and shared space of others.” Even though most condo managers are not employed directly by a condominium corporation, it is reasonable to assume that “respect for employees” is intended to include the condo manager.

Replenishing the condo manager shortage

Many condominium managers are subject to a lack of respect for their ability to do such a challenging job. That was supposed to change with licensing: condo managers would be considered professionals like lawyers and engineers.

Condo managers also deserve respect because this industry is in crisis. Unless something changes, there simply won’t be enough professionals to meet the legal requirements of having each condominium corporation managed by a licensed manager.

There are 12,120 condo corporations in Ontario but only 2,270 general licensees and 1,399 limited licensees. Burnout or disillusionment is a real issue contributing to why condo managers, both new and experienced, are leaving their jobs.

There is no sign that the shortage will improve in the near future, so it’s critical that current condo managers want to stay in the profession. Managers, management companies and boards need to work together to reduce the incidents of abuse or harassment and encourage respect for the condo manager.

Given this growing shortage, a community must treasure a good manager. There is no guarantee that the next condo manager will meet the high standards of a demanding board—the grass is not always greener. This is especially true for ACMO Registered Condominium Managers. An RCM is best-in-class in the profession and has plenty of employment choices. Less than a quarter of all condominium managers hold this designation. RCMs have always been committed to high standards and continuing education, and they can find a new job almost immediately.

Top 7 signs a condo manager is respected

1. No tolerance for abuse: It should go without saying that threats or physical abuse warrant police involvement and advice from the corporation’s solicitor. There’s a perception by some that verbal or psychological abuse is “part of the job” and isn’t a “big deal.” Foul language or verbal abuse should not be tolerated. Boards have accountability for making the bad behaviour stop. Trying to avoid legal expenses should not be a barrier to protecting the condo manager. Have a Workplace Harassment Policy in place and enforce it.

2. Perspective. The manager has probably done 50 (or 100?) things right today. Going off the deep end about the one or two things that weren’t done right, including a typo in a notice, is an over-reaction. The courts have said that corporations aren’t expected to be perfect, so the manager shouldn’t be either. Ask rather than accuse when in doubt about something a manager has done.

3. Realistic expectations. Acknowledgement that a manager can’t get everything done at once and tasks need to be prioritized. Major physical building projects, legal disputes, ongoing noise complaints and flood investigations all take time away from regular duties. Sometimes a manager might feel like a magician when they have accomplished so much in a day or solved a particularly complex problem, but they don’t actually have a magic wand. There are only eight hours in a workday and five days in a workweek.

4. Work-life balance. Recognition that the manager has a right to personal time. Perhaps a meeting can be held at 8 a.m. or 5 p.m. instead of 8 p.m. so that the manager can enjoy time with their family. Equally, if a condo manager stays late for a meeting, it should be standard practice to come in late or leave early the following day. With no commuting time and less socializing, Zoom meetings are more productive and more respectful of the manager’s time.

5. Contract hours do not equal office hours. The manager has many tasks and duties which require quiet concentration or private time for confidential discussions with a resident. If the posted office hours when residents can drop by are from 9 a.m. to 5 p.m., when does the manager find that quiet time? Would it truly negatively impact residents if the hours were, for example, 9 a.m. to 3 p.m.? This would provide the manager with two hours a day of valuable uninterrupted time.

6. Appreciation. The manager is thanked for their efforts, their guidance and their long hours. In many condominiums, the manager will be thanked only once a year (at the AGM), and sometimes not even then. It makes a huge difference to the work environment when a condo manager feels supported by the board and the community.

7. Compensation. Fairly compensated for their knowledge and expertise and skills, especially in a workforce which is experiencing shortages.

Juliet Atha, RCM, has been a condominium manager for ten years and now heads the team at Best Practices Property Management. She holds an MBA from Ivey Business School (Western University) and has been an instructor of the ACMO Financial Planning and Admin courses at Humber. Juliet is the Executive Member at Large on the ACMO Board of Directors.