The ultimate recourse when condo owners are dissatisfied with the board or its decisions is to requisition an owners meeting to remove directors. This process often leads to various groups campaigning the owners to support their position. A recent unreported case reminds us to exercise caution in the context of this democratic exercise to avoid facing a defamation.

Facts of the Case

The context is far too familiar. A group of owners wishing to remove some of the directors circulated a petition in support of their requisition for an owners meeting. The requisitionists listed the following grounds in support of their petition:

  1. The directors did not act in the best interest of the corporation or the owners;
  2. They interfered with the owners’ democratic rights;
  3. They failed to manage the corporation in compliance with the Condominium Act, the by-laws and the declaration;
  4. They lacked proper skill and competence to work as directors; and,
  5. Owners have lost confidence in their ability to manage the Corporation.

The petition was circulated to the corporation’s 300 owners. One of the concerned directors advanced a claim in defamation against one of the requisitionists, whose name and signature appeared on the petition.

Is a Requisition Capable of Being Defamatory?

In a libel action, the plaintiff only has to prove on a balance of probabilities that:

  1. There was a publication concerning the plaintiff;
  2. The publication was made to a third party; and,
  3. The publication is capable of being defamatory.

A publication can be defamatory if its words, in their ordinary meaning, tend to lower a person in the estimation of right-thinking members of society or if it exposes the person to hatred, contempt or ridicule. Once this has been demonstrated, the onus shifts on the defendant to prove one of the available defences.

The following are some of the defences available in a defamation claim:

  • The defence of truth: If the words complained of are true, the communication is not defamatory;
  • The defence of fair comment: This defence protects expressions of opinions made in good faith on facts that are truthful and which concern matter of public interest. The comment must be in the form of an opinion, which a honest person could have held in the circumstances;
  • The defence of qualified privilege: This defence is available when a person has some duty (legal, social or moral) to make a communication (which would otherwise be defamatory) to individuals who have a corresponding duty or interest in receiving it. An example of this would be in the context of an election or when conveying important information pertaining to the governance of the condominium.

It is to be noted that the existence of malice in the communication would defeat or severely weaken the last two defences listed above.

The Decision

The judge concluded that the words found in the requisition were defamatory. In their ordinary meaning, they would be understood to mean that some of the directors had acted improperly or illegally in their role as board members and that they were incompetent in that capacity. The judge concluded that, even if the words of the petition could be construed as comments on a matter of public interest to members of the corporation, no facts were presented to support the statements made in the requisition. The defendant also did not demonstrate that these statements were true.

It is interesting to note that the judge acknowledged that the requisitionists likely acted in what they believed to be the best interests of the other owners. Still, he emphasised that, as legitimate and well-intended as the author may have been, personal attacks were not appropriate nor necessary.

Who is Liable for the Content of the Petition?

One of the question considered in this case was whether only the author of the petition could be held liable for its defamatory content or whether all of those who signed the petition were opened to liability.

The judge concluded that the act of printing one’s name on the petition and the act of signing it resulted in this person adopting its content. This attracted liability even if one was not the actual author of the petition.

Damages

Before addressing the question of damages, I must note that the parties involved in this litigation were actually advancing defamation claims against one another. Indeed, the director in question is alleged to have circulated an electoral communiqué to all 300 owners of the Corporation. The object of some criticism found in this letter made a claim in defamation against the director. The director advanced a counter-claim, which I discuss above. The existence of these two cross-claims may have played a role in the outcome.

The judge awarded $1,000 in damages to one another and no costs.

Lessons learned

Before signing a petition or requisition to remove a director, owners should ensure that its content is not defamatory. The best defence is to ensure that the content of the petition is true. If the petition is going to make allegations against a director (such as that they are not acting diligently, honestly or in good faith, which is simply a reproduction of some of the content of article 37 of the Condominium Act) you want to make sure that these comments are understood to be comments or opinions and you want to make sure that they are supported by true facts. It probably is always best to have the content of the requisition reviewed by a lawyer before sending it out.