Property Management

July 12, 2019 Published by Toronto and Area Chapter - By Fatima Vieira

How to Request But Not Harass

From the Summer 2019 issue of the CCI Toronto Condovoice Magazine.

Owners have the right to the enjoyment of their condominium and to demand that it works the way it should. The elevators should operate, the security staff should not let outsiders in and the pool should be clean, operational and available during the normal opening hours. When things don’t function the way they ought to, owners may wonder where their fees are going and whether anyone is looking after or working to correct these problems. When this happens, you may want to speak to someone without wasting too much time to address these problems. In a condominium, the front-line service personnel are typically the security staff or the property manager or administrator. You approach him or her understandably unhappy about these various interferences with your enjoyment, your frustration increases, you become upset, a heated discussion and argument ensues, swear words are used, shouting and profanities are heard throughout the lobby and the argument may escalate from there into an ongoing feud.

Now property problems are overtaken by very serious people problems, namely a harassment complaint by your service provider.

Your service providers are “workers” with the right to a harassment-free workplace under the Occupational Health and Safety Act. Harassment can be defined as: “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment can consist of yelling, profanity and abusive language, embarrassing, humiliating, demeaning , degrading, rude or offensive comments, yelling, slamming doors and disrespectful conduct, especially in front of other people. Spreading malicious rumors in the community about the worker can also constitute harassment.

In addition to the anti-harassment protections under the Occupational Health and Safety Act, harassing conduct towards one of the workers in your building can engage the Human Rights Code if the harassment concerns a ground which is prohibited under the Code. The Code provides every person who is an employee with rights to freedom from harassment in the workplace by the employer or by another employee because of race, ancestry, place of origin, ethnic origin, citizenship, creed, record of offenses, marital status, family status or disability.

Under either statute, harassment can be a single statement even if the definition refers to a “course of conduct.” What constitutes harassment is based on an objective assessment of the conduct, rather than the complainant’s subjective view. The adjudicator would ask whether a reasonable person in the position of the complainant would feel embarrassed, humiliated or demeaned.

The condominium corporation is an “employer” of the superintendent or security or property management personnel under contract. As such, the Corporation has positive obligations to ensure a safe and harassment-free workplace at the condominium building. These positive obligations include having a policy in place with respect to workplace harassment and a written program to implement the policy with respect to workplace harassment. The legislation also specifies what must be included in the program, such as the means to complain to a supervisor or to someone other than a supervisor if the supervisor is the harasser, to investigate complaints promptly and to communicate the results of the investigation back to the complainant and the respondent, and to take the appropriate corrective action.

An investigation usually involves interviewing all parties and giving an opportunity for the respondent to tell her or his side of the story as well as the complainant. The Ministry of Labour also has the authority to order an external investigation by an impartial person with particular knowledge, experience or qualifications as specified by the Ministry of Labour Inspector, who would be paid by the employer.

If you are the harasser, your conduct could also constitute a breach of the Bylaws or Rules of the Condominium Corporation. The Board of Directors would have the obligation to take steps to demand compliance. This could include a simple letter demanding compliance or an application in the Superior Court.

All of this is to say that when your home is also someone’s workplace, the owner or customer’s right to satisfactory service from providers is not absolute. “The customer is always right” principle is not entirely correct in the context of a condominium community whose members include the service personnel and management. The workers’ rights are protected by legislation and breach of these rights can lead to costly litigation as well as disharmony in your condominium community. Having a program in place which allows owners a method to easily and calmly report problems in writing about the property, or about a service provider, and allows the board of directors time to review, investigate and respond, will help contain such problems and prevent normal property and equipment problems from morphing into painful people problems.