Owners who take part in signing a requisition to remove a
director should be carefully reviewing what they sign or they may
be finding themselves involved in a lawsuit where they could be
held personally liable.
This was the case in a recent Small Claims Court decision,
Swan v. Goan, involving a requisition to remove a
director1 and the commencement of five separate claims
by the President of the board against two other board members, the
condominium corporation and the property manager. The requisition
to remove the President listed the following reason for his
"failure to act honestly and in good faith, and failure to
exercise the care, diligence and skill that a reasonably prudent
person would exercise in the circumstances."
These words come directly from the director's Standard of
Care provisions in Section 37(1)2 of the Condominium
The defendants stated that the requisition wording were
expressions of their opinion, fair comment, and were made without
malice. It was noted that the President did the following:
He erected a satellite dish on the roof of his unit contrary to
Section 98 of the Condominium Act and refused to remove it.
Without consulting the other board members and despite the
other members objections, the President continued to demand the
records for the condominium corporation from management.
The President sent threatening e-mails to management and one of
the board members.
The President without a resolution of the board, sent an e-mail
terminating the management agreement.
Without the knowledge of the other board members, the President
sent an e-mail to unit owners, on the condominium corporation's
letterhead, advising that "it appears that both the
current and past Boards have disregarded many of the rules and
regulations of both the Condominium Act and the By-laws of DCC
The President accepted service of his claim against the
condominium corporation but did not notify the other board members
until after the expiration of the 20 time limit for filing a
The President parked in the visitor parking area and used his
assigned parking space for a second vehicle.
The Court noted that in order to be successful in a defamation
action, three things must be proven:
that the impugned words were defamatory, in that they would
tend to lower the President's reputation in the eyes of a
that the words in fact referred to the President; and
that the words were published, meaning that they were
communicated to at least one person other than the President.
The Court found that that the requisition was circulated to the
unit owners and that it was clear that the reasons for removal
related to the President. The issue was whether the statements made
in the requisition were defamatory. The Court found that they were
not and dismissed all the claims.
The Court did note that even if any of the defendants defamed
the President, then the court would have assessed the damages in
the amount of $2.00 as the President did not introduce any evidence
to establish damage to his reputation.
This case is important in that it clearly shows that unit
owners, board members and property managers, should ensure that
where they are involved with a requisition to remove one or more
board members, the reasons set out should be carefully reviewed,
preferably by legal counsel, to avoid allegations of defamation and
a potential claim.
(Originally published on December 21, 2010 on the Condo Reporter
Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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