Condo and Cooperative Boards Must Proactively Address Bullying And Harassment Complaints

Everyone who has been bullied will agree that it is a nightmare to have to endure intimidating and harassing behaviour on the playground or in the workplace. What happens, however, if the bully is a tenant or owner in the building where you live? What if the bully is a coward and anonymously hides their identity while leaving harassing and intimidating messages. A recent Human Rights Tribunal decision, Welykyi v Rouge Valley Cooperative Homes, 2016 HRTO 299, considers this issue and provides some helpful advice on the role that boards of directors have in addressing the situation.

Without going into the context of the decision in detail, over a period of several months, ten separate residents of a cooperative housing association became targets for anonymous harassment. Approximately twenty offensive messages related to prohibited basis of discrimination such as gender identity, disability, race, ancestry, age and receipt of public assistance were left in the building. In some cases flyers were left on individual's doors, or public areas such as the mailroom. Alternatively, messages were left in public elevators. All of the targets, or their family members, notified the building manager or the board of the situation.

Little was done to address the situation. Initially, vaguely worded notices referencing "extreme and repeated vandalism and some very disturbing behaviour" in the building were distributed to residents. Not surprisingly this vague notice failed to stop the harassment. A short while later 22 "fake" cameras were installed in various locations in the building. However, word of the non-functional nature of the cameras leaked out and the cameras failed to provide a deterrent to the behaviours. Two existing cameras were re-positioned to cover specific doors where flyers were posted. Finally, a public meeting was called with intent to address the ongoing harassment but the board failed to address it and other issues were assigned priority.

Ten residents filed a complaint with the Human Rights Tribunal alleging that the cooperative failed to protect them from discrimination and harassment in their occupancy of accommodation. The cooperative defended its actions claiming that, since it did not know who was doing the harassment and could not discover the harasser's identity, there was nothing it could do.

The Tribunal rejected the cooperative's defence. It ruled that the cooperative did not take steps to "adequately address" the complaints. The tribunal referenced that the cooperative did not have a policy on how to deal with human rights complaints and that board members did not have awareness of human rights issues. However, those shortcomings were not determinative of the lack of adequacy in addressing the complaints. Rather the tribunal looked at how seriously the board had taken the complaints and steps that it should have taken to address the issues. Specifically, it stated:

[169] 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. ... 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 tribunal awarded compensation of $3,000 to each of the ten complainants and ordered the board to post copies of the decision in addition to notifying residents of the decision.

The requirement of acknowledging the complaint and providing ongoing communication of intended and ongoing action is a simple step to keep harassed residents aware of what is being done to address the situation. Testimony from one resident bluntly stated that the worst of the situation was dealing with the board's indifference and not the harassment. A board can easily address the complainant's frustration by communicating with the complainant and keeping him or her involved in resolving the situation.

It is likely that condo boards would be subject to the same requirement as a cooperative situation.

The Lesson: At no point did the tribunal suggest that the board would be held to an absolute requirement to favourably resolve a situation especially in the context where they cannot identify the bully. However, the board can reduce its exposure to liability by communicating with the complainant about its efforts to resolve the situation including listening to the complaint and other residents about proposed resolutions.

Welykyi v Rouge Valley Cooperative Homes, 2016 HRTO 299 https://www.canlii.org/en/on/onhrt/doc/2016/2016hrto299/2016hrto299.pdf

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