Defamation is becoming an increasing issue in Condominiums when Owners are disgruntled with the Board of Directors or Property Managers, when a Board is disagreeing on an issue or when a Board or Property Manager becomes increasingly frustrated with an Owner's actions or with the services provided by an external vendor. This article explores defamation generally and highlights practical considerations for Owners and Board Members/Property Managers.
Defamation involves false statements that harm another person's reputation. Defamation can occur through written statements (libel) or oral statements (slander).
The Plaintiff in a defamation action is require to prove three elements:
- That a defamatory statement was made (that would lower someone's reputation in the eyes of a reasonable person);
- The words referred to the Plaintiff;
- It was communicated to at least one other person.
Some ways defamation may occur in a condominium context are:
- Board Meetings – statements made during board meetings by board members may discuss the behaviour or potential Bylaw breaches of a specific resident. Board members can carry a significant amount of influence in some condominium communities, so their statements can have consequences if they may reasonably affect a resident or Owner's reputation within the community.
- Social Media/Community Pages – some condominiums have their own community page or discussion board where residents can communicate and/or receive official condominium communications. With the rise of social media and the ease with which information can be transmitted, statements made on these platforms can very quickly reach a large audience and be shared beyond these pages.
- Reviews – Owners may write a review about a Property Management company and/or external vendor. A Board may also wish to write a review about a vendor or contractor that they have engaged to provide services to the Condominium.
- Written Communications – official condominium communications, including Board minutes, notices and newsletters, can also unintentionally contain defamatory statements.
- Informal Conversations – casual conversations between residents or Board Members that are overheard or communicated to others may also be defamatory.
Canadian Courts have previously considered defamation in a variety of contexts. For example, in Walsh v Badin, 2019 ONSC 689, the Courts considered defamatory comments made in three letters that were sent to condo residents by another resident. These letters alleged that board members had taken funds from the condominium, received kickbacks from contractors, interfered in elections and did not allow owners' to access condominium records. Some former and current board members sued and the condominium resident defendants applied for dismissal of the claim but the Court found that there was merit to the claim that needed to be determined at trial.
In Marika Property Management Inc. v Cappuccitti, the Court considered defamatory statements about a property management company published in an Owners newsletter. The Court noted that the Owner had refused to retract the statement and that the statements resulted in a premature termination of the management contract. In Consumers' Association of Canada v Hillard, the Court awarded damages in favour of a Condominium Board President after a former Board member had emailed 15 other Board members (and some government officials) suggesting that the President was going to cause the organization to become bankrupt and that he was a dictator.
Some ways in which Owners/Residents, Board Members and Property Managers can work to prevent potential defamation claims are:
- Work to ensure that all communication is done clearly and in a professional manner and/or are true. This includes ensuring that any allegations and/or claims are supported by the best available evidence and not simply based on word of mouth.
- For Condominium's and Property Managers, work to be familiar with the obligations imposed on a Condominium under Alberta's Personal Information Protection Act, the Condominium Property Act and Regulation and the Condominium's Bylaws.
- Owners should be familiar with the Bylaws and ensure compliance with same.
- Seek Legal Advice as needed. A Board or Property Manager may wish to seek legal advice before sending out a communication or have the assistance of legal counsel attend at a potentially contentious Annual General Meeting or Special Meeting.
Related to Defamation is whether owners may be harassing property managers and/or board members. The Alberta Court of King's Bench has recently considered whether a tort of harassment exists in Alberta Health Services v Johnston. Ultimately, the Court found that a Defendant will be found to have committed harassment where they have:
- Engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;
- That they knew or ought to have known was unwelcome;
- Which impugn the dignity of the Plaintiff, would cause a reasonable person to fear for their safety or the safety of their loved ones, or could foreseeably cause emotional distress; and
- Caused harm.
This has been a change in a relatively unsettled area of Canadian law. For Condominium Owners, Board Members and Property Managers in Alberta, the creation of this tort may have large implications for any individuals who provide repeated, unwelcome communications, affecting one's dignity and causing harm.
About Mackrell International - Canada - Scott Venturo LLP is a full service business law firm in Calgary, AB and a member of Mackrell International. Mackrell International - Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.
This article is intended to be an overview and is for informational purposes only.