Everyone knows that being on a condo board can be a difficult and thankless job, often attracting criticism from other owners. But what is a corporation to do if owners send defamatory emails? An Ottawa judge has drawn a red line.

Facts of the case

In this case, a condo owner decided to send his opinions and criticism of the board to all owners and residents of the corporation. What is interesting about this case is that this owner did so while hiding behind an anonymous “yahoo” email address. To further camouflage his identity, this owner adopted the alias of Ian Fleming – the famous author of the James Bond series. The result of this is that no one knew who Ian Fleming was or what was his relation to the corporation.

In his communications, he accused the board (and specific directors) of receiving “kickbacks” and of “giving free reign” to contractors at the expense of the owners. He also accused them of lacking transparency and of turning a blind eye to alleged employee harassment.

When asked to identify himself, Ian Fleming refused to do so and continued to hide behind an anonymous email address.

The board brought a court application seeking an order compelling Yahoo! to turn over information which could allow them to identify Ian Fleming.

The Decision

The Judge recognized that these kinds of orders are intrusive and extraordinary remedies, to be exercised with caution. Indeed, what the corporation was seeking was the disclosure by a third party (Yahoo!) of information which may otherwise be expected to be confidential (Ian Fleming’s identity). In its decision, the court was required to balance the interest and obligations of the corporation, of Yahoo! and of Ian Fleming.

Yahoo! took no position in this matter.

The words were defamatory

As a starting point, the judge agreed that Ian Fleming’s words were capable of being defamatory. This was therefore not a case of an oversensitive board taking umbrage to reasoned and balanced criticism from owners. This was an owner who sent a mass-email to owners and occupants, raising all sorts of defamatory statements. A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers. One which causes the person to be regarded with hatred, ridicule, contempt or dislike. The words used by Ian Fleming were capable of having such effect on board members according to the judge.

Expectation of privacy?

Her Honour also balanced Ian Fleming’s expectation of privacy (as the originator of the defamatory email) with the interest of justice in disclosing of his identity. She agreed with the corporation that the email originator could not have a reasonable expectation of privacy in relation to the use of the internet for the purpose of publishing defamatory statements to a wide group of recipients. She concluded that the interests of justice strongly favoured the corporation.

Condos must protect the reputation of its directors

More importantly, in the context of condominium governance, her Honour concluded that the corporation had a statutory duty to take all reasonable steps to ensure compliance with the Condo Act and with the corporation’s governing documents. In this case, the Corporation relied on section 117 of the Condo Act, which prohibits owners from carrying on an activity which is likely to cause injury to an individual.

Her Honour concluded that this court application was exactly that, a step reasonably taken by the corporation to ensure that its board members and employees are not subjected to defamatory statements.

Only time will tell if Ian Fleming will be unmasked, but Agent 007 is zeroing in on him…