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Have mechanism to remove disruptive condo board members

2019-10-15

Audrey Loeb Head Shot

Having a code of ethics in place for a condominium’s board of directors assists in holding members accountable if they become disruptive, problematic or violent, says Toronto condominium lawyer Audrey Loeb.

“One of the things that we recommend to our clients is to approve a code of ethics that governs the board members and that board members should be required to sign,” says Loeb, a partner with the Toronto office of Shibley Righton LLP.

“Many of our corporations have it in their bylaws as a qualification for board membership. If there is a problematic board member, and the proper procedures are followed, then the board can decide whether to remove the member.”

Without a bylaw in place, a board member can only be removed by a vote of 51 per cent of all the unit owners, she tells AdvocateDaily.com.

“With a bylaw that disqualifies the person from board membership if he or she fails to comply with a code of ethics — and the board follows the right procedures and gives the offending board member an opportunity to speak to the accusations — then you can remove them without a vote by unit owners,” Loeb says.

If a condominium corporation becomes aware of an incident, she says it has an obligation to deal with it.

“But a condominium corporation is not in a position to prevent something from happening, it’s only in a position to try to ensure that it doesn’t happen twice,” Loeb says, pointing to an Ontario Superior Court of Justice decision involving an assault by a board member.

In that matter, the plaintiff brought a claim against a condo corporation for failing to protect her from an assault by the defendant at a board meeting.

According to court documents, the assault that took place at a 2011 meeting of a condo board, where the plaintiff and defendant began to argue, and he struck her on the head with a chair.

At issue was whether the condo corporation had a duty to prevent an assault by a meeting participant.

“It would be unduly onerous to find that a condominium corporation has a duty to provide security at every Board meeting to prevent a potential assault. Even given the contentious environment at the Board in this case, it would not be reasonable to require the condominium corporation to provide security,” wrote Justice Sandra Nishikawa. “It is reasonable to expect individuals who participate on the boards of condominium corporations to adhere to a standard of conduct that includes, at a minimum, refraining from assaulting another participant.”

Loeb, who was not involved in the matter and comments generally, says the corporation’s role is not an anticipatory one.

“If you’re having meetings and there’s a board member who is threatening others, then you have an obligation to remove that board member,” she says. “But I don’t think you can protect a board member if, out of the blue, someone decides to throw a punch.”

A code of ethics and bylaw that cover that type of behaviour can be used to remove that member, Loeb says.

“For example, we would send a warning letter to the problematic board member. If the behaviour happens again, it’s grounds for removal. Then we would hold a hearing to determine whether the conduct is such that the individual board member should be removed from the board. The person in question will have an opportunity to speak to the accusations as will the other members. Then the board will make a decision as to whether they can be removed,” she says.

Loeb says another option is to give the disruptive board member a warning and state that they cannot attend meetings if they don’t “behave.” If there are continued disruptions, the other board members can remove themselves from the meeting and finish the session elsewhere.

“But it doesn’t foster a good environment,” Loeb says. “I would rather the person know that failure to meet certain criteria can result in the board members deciding that the offending individual should no longer be a member.”

 

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2019-10-15