Ontario Human Rights Tribunal Finds That Co-op Board Failed to Properly Respond to Harassment of Former Board Members

A recent decision of the Ontario Human Rights Tribunal, involving harassment at a co-operative corporation, may also be important for condominium corporations.

In the case of Welykyi v. Rouge Valley Co-operative Homes Inc., the Tribunal held that the Co-op’s Board of Directors had failed to adequately address harassment of members of the community. Briefly, the facts were as follows.

There was tension between a previous group of Board members and the new Board. This tension stemmed from a dispute about the alleged use of Co-op funds to renovate a particular Board member’s unit. Between April 28, 2012 and September 15, 2012 an anonymous and unidentified person wrote or posted eighteen upsetting and disparaging messages about certain members in the Co-op. Some of the targeted members were from the previous Board.

Some of the messages referred to specific individuals and their unit numbers. The content included terms related to disability, race, sex, gender identity, ancestry, age or receipt of public assistance. These are prohibited grounds of discrimination in relation to the occupancy of accommodation under Ontario’s Human Rights Code. The messages were posted around the Co-op, in the mail room, on specific members’ doors and written on the walls of the elevators.

The new Board had made some efforts to deal with the harassment. For instance, the Board sent notices to all members (instructing against vandalizing the property) and ultimately sent a further notice against the specific postings. The Board also relocated two security cameras and installed twenty-two fake cameras. The Board also offered mediation to some of the members affected by the postings. At the same time, the Board had asserted that there was only so much that could be done, because the culprits could not be identified.

The Human Rights Tribunal said that the Board’s efforts were not enough, and held that the Board was in violation of its obligations (under the Human Rights Code) to take reasonable steps in the face of such harassment.

The Tribunal noted that the Co-op had no harassment or discrimination policy, and also no training in relation to such matters. But, more importantly, the Tribunal said that the Board had failed to respond properly to the particular incidents. Here’s the key extract from the decision:

In my view, the formal processes and policies that a housing provider may have in place are less important than what it actually does once it receives a complaint of harassment. Whether the respondent’s reaction to complaints of harassment was reasonable, depends, as noted, on the unique circumstances of each case. One of the unique and obvious characteristics of this case was that the harassment experienced by the applicants was egregious and persistent. In this context, the evidence does not support the respondent’s contention that it took the matter seriously or addressed it with a sense of urgency. In my view, the respondent’s most significant failure was the complete absence of communication with the applicants. In my view, when a respondent receives a human rights complaint it should acknowledge the complaint, assure the complainant(s) that the complaint is important, and that action will be taken to address it. In ongoing situations such as this one, a respondent should maintain contact with the complainant(s) and keep them apprised of the actions the respondent intends to take. Such communication is particularly important in the housing context, where a housing provider does not have control over the residents and therefore has limited ability to investigate and address complaints. An employer, by contrast, can compel its employees to participate in investigations and may take action even when investigation results are inconclusive. In cases of surreptitious harassment, such as this one, it may not be possible to catch the culprit, but the victims must be assured of their right to live in an environment free from discrimination and harassment. The evidence was that the Co-op never contacted the applicants about the flyers.

The Tribunal awarded each complainant $3,000 to compensate for the failure of the Board to adequately investigate and address the complaints. The Tribunal also ordered the Board to inform all members of the Co-op about the award and to post copies of the decision on the Co-op bulletin boards for a period of six months.

In my view, there is a real possibility that these same concepts could be applied to a condominium corporation. For these purposes, Co-ops and condominiums are very much analogous.

Of course, the obligations under the Human Rights Code are only triggered in cases of harassment on prohibited grounds of discrimination. Note, however, that a condominium corporation may have separate obligations to address many types of harassment on the condominium property, because of the corporation’s duties (in Section 17(3) of the Condominium Act) to take reasonable steps to enforce the Condominium Act, and the corporation’s declaration, by-laws and rules. Even if harassment does not involve prohibited grounds under the Human Rights Code (so that a claim to the Human Rights Tribunal is therefore not a possibility), harassment may often violate Section 117 of the Condominium Act, or provisions of the corporation’s declaration, by-laws and rules.

To read more about human rights issues in condominiums, see our previous blog post on human rights insurance.