Strata Alert: Online Tribunal Unable To Penalize Online Harassment of Strata Representatives

 

Alex J. Chang, Associate
Phone:  604-685-1255
Email:  ajc@lmlaw.ca

 

The recent Civil Resolution Tribunal (CRT) decision of Strata Plan BCS3636 v. Burmy demonstrates again the trouble that strata corporations have had addressing online harassment in their communities. This is troubling because strata corporations increasingly conduct business electronically and vexatious owners and tenants often choose to harass a strata corporation’s representatives or owners online.

In Burmy, the strata corporation sought judgment in the CRT for $9,400 in fines against an owner as a result of numerous bylaw violations by their tenant, about a third of which related to the tenant’s abusive emails, texts and social media posts.

The tenant “doxed” strata council members by posting to social media their personal contact information and places of employment alongside allegations that they were all racists. The tenant even contacted at least one employer of a council member directly to accuse them of employing a racist. The tenant also sent numerous messages to the strata manager accusing them of sexism and racism. Similarly, they texted the building manager calling them a white supremacist.

The CRT concluded that the tenant’s accusations were “unfounded” and that they had “no rational basis to accuse anyone involved with racist or sexist motives.”

The tenant was fined under standard bylaws that said that a tenant or owner “must not use a strata lot or common property” in a way that causes a nuisance or hazard to another person, unreasonably interferes with the rights of other persons to use and enjoy strata property, or is illegal.

The CRT found that the bylaw did not apply to the digital harassment, stating:

  1. The owner argues that bylaw 8.1 does not apply to the tenant’s digital communications because they do not involve the “use” of a strata lot or common property. In response, the strata argues that the overall purpose of bylaw 8.1 is to facilitate harmonious living. With that purpose in mind, the strata says it is reasonable to adopt a broad definition of “use” to capture digital communications about strata matters. […]
  2. 33.   […] I do not consider sending emails and posting to social media to be part of the “use” of a strata lot, even if the tenant was home when they composed them. Digital communication is inherently mobile and unconnected to any specific location. In other words, the tenant’s digital harassment was unrelated to the physical space of the strata.

This finding mirrors other decisions where the CRT has been unwilling to apply bylaws to punish or restrict campaigns of online harassment because the infraction did not occur on strata property. This is a problem that is likely to recur since many strata corporations respond to cases of online nuisance and harassment by applying similar bylaws that restrict how strata property may be used.

The answer to this problem may lie in passing different bylaws.

In Strata Plan LMS 2461 v. Luo, the CRT enforced a bylaw barring harassment and ordered an owner not to video record meetings and to remove all such content from the internet.

An anti-harassment bylaw may not be the only kind of bylaw that can reach into the physical or virtual world beyond the strata property. In addition to making bylaws about the control, management, maintenance, use and enjoyment of strata property, s. 114(2) of the Strata Property Act allows a strata corporation to make bylaws that provide for the administration of the strata corporation. The CRT in Richardson v. Strata Plan VR283  confirmed that under s. 114(2) a strata corporation has a “limited” ability to “make bylaws about a person’s conduct off strata property if it affects the administration of the strata”. Little explanation was given as to why such limits were justified under the Act, so it will be up to future decisions to clarify the extent to which such bylaws can restrict the harassment or interference with council members, managers, trades, owners or tenants online or off the strata property.

The Burmy decision suggests that the result may have been different if the bylaws had restricted the interference in the administration of the strata corporation. The CRT held there was “no doubt that the tenant’s conduct interfered with the strata council members’ ability to manage the strata and feel safe in their homes” and that “The conduct may also have jeopardized the strata’s relationship with its strata manager and building manager.” Had the strata relied on a bylaw that more directly barred such conduct instead of a restriction on the use of property, arguably the CRT would have found the bylaws applied.

Strata corporations or managers dealing with online harassment should seek legal advice, including whether their bylaws are sufficient to regulate problematic behaviour online.

Lesperance Mendes has been representing and advising British Columbia strata corporations, strata owners, and strata managers since 1997. To find out more about our strata property law practice, contact any member of our strata property law practice group: Paul Mendes, Sat Harwood, Alex Chang, or Amanda Magee.

 

THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied upon without independent legal advice with respect to the specific facts of your case.