Court File and Parties

Court File No.: CV-19-620461 Date: 2019-07-02 Ontario Superior Court of Justice

Between: B.K., Applicant And: YORK REGION STANDARD CONDOMINIUM CORPORATION NO. [...], Respondent

Counsel: Antoni Casalinuovo, counsel for the Applicant Justin Safayeni, counsel for the Intervener

Heard: June 18, 2019

Before: G. Dow, J.

Reasons for Decision

[1] On May 29, 2019, I made an ex parte order appointing an Administrator and Inspector for the respondent, York Region Standard Condominium Corporation No. [...] (“Condominium Corporation”). I based the order on affidavit evidence. There was an affidavit from the former president of the Condominium Corporation (which attached 31 exhibits) and his spouse, a unit owner. I also reviewed evidence from the proposed Administrator/Inspector who also attended in court that day and answered some questions I asked about his awareness of the circumstances described below.

[2] The material sets out the circumstances whereby the Board of Directors of the Condominium Corporation had been reduced by resignations to an amount less than quorum. The development consists of 497 dwelling units within three municipal addresses. Due to building deficiencies and flooding, the main affiant deposed millions of dollars had been spent on repairs, deficit operating budgets had occurred over the “past several years” (at paragraph 9) and “multiple special assessments” (at paragraph 10) had been levied. The affiant acknowledged this led to hostility and mistrust amongst the unit holders.

[3] By March 26, 2019, there was a requisition for a meeting to replace the existing Board. The affiant, had also been contacted by a reporter employed by the Canadian Broadcasting Corporation (“CBC”) who advised he was working on a story to be published. The affiant also deposed he had been contacted by a lawyer retained by the unit owners who had requisitioned the meeting and advised that unless the Board resigned, the CBC article would be published. If the Board agreed to resign, this lawyer would let the CBC know “in order to ‘kill the story’ ” (at paragraph 15).

[4] The materials contained, at exhibits 9 and 19, copies of CBC news articles dated April 9 and April 30, 2019 prepared by its reporter, John Lancaster. It detailed the above-noted problems and the efforts of some unit owners to “kick out their condo board”. The initial article also noted this to be “an increasingly common problem facing thousands of Toronto area condominium residence” and quoted the same lawyer that had contacted the former president of this Condominium Corporation. This second article detailed resignations by the other Condominium Corporation board members such that it had lost quorum.

[5] A meeting arranged for May 21, 2019 in the nearby country club was cancelled on short notice given the previous events and anonymous threats made to now former board members, the Condominium Corporation auditor and the property manager (see paragraphs 34, 35 and 37). The threats against the former president and property manager included physical harm to those individuals, their families and their lawyer. This was reported to York Regional Police who launched an investigation. Finally, the materials included confirmation that a lawyer retained by the purported new board at a meeting held on May 21, 2019 at an alternate location was not in a position to oppose the relief sought. This was as a result of an issue as to whether the election of the purported new board was legitimate.

[6] The order signed by me on May 29, 2019 contained, at paragraphs 24 and 25, a publication ban. This was forwarded to the CBC news reporter would had authored the previous stories. He immediately wrote to me advising the protocol to make such an order had not been followed and sought a variation. On May 30, 2019, I made an endorsement circulated to the Applicant and Mr. Lancaster that they obtain a date on an expedited basis to appear before me from the Motion’s Co-ordinator if an agreement on the variation sought could not be made.

[7] On June 4, 2019, the parties appeared before me and a further endorsement was made for the issue to be argued on June 18, 2019 for two hours. The Applicant was to follow the Superior Court protocol and to immediately file the requisite Notice of Request for Publication Ban under Section 108 of the Consolidated Provincial Practice Direction.

[8] The publication ban was varied with the consent of the Applicant and not opposed by counsel retained for the Condominium Corporation to allow publication but not name the Applicant or any of affiants without prejudice to the right of the CBC to argue for the complete setting aside of any form of publication ban.

[9] In advance of the hearing date, I received materials from the Applicant and counsel for the CBC. I also received a motion record from lawyers for the Condominium Corporation seeking to set aside the appointment of the Administrator and Inspector on an urgent basis. I understand this has been scheduled to proceed on July 4, 2019.

[10] The parties before me (and I) agreed the evidence contained in that material was not to be considered by me as part of determining whether the publication ban should be set aside or varied. I also confirmed during submissions that in response to the electronic filing of the Notice of Request for Publication Ban, no other media had contacted either of the parties to indicate they would be attending to support or oppose the position of either party.

Analysis

[11] As a civil matter, publication bans are discretionary, common relief that requires the balancing of the litigants Section 7 Charter rights to “life, liberty and the security of the person” with the Section 2 (b) fundamental freedom “of thought, belief, opinion and expression, including freedom of the press and other media of communication”. As described in Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 (at paragraph 77) and adopted in Sierra Club of Canada v. Canadian (Minister of Finance), 2002 SCC 41 (at paragraph 40) the onus is on the party seeking the ban to show it is necessary to prevent a real or substantial risk to the fairness of the trial (if reasonable alternatives will not prevent that risk) and the salutary effects of the publication ban outweighs the deleterious effects to those whose right to freedom of expression are affected.

[12] The Applicant submits that the evidence points to the threat of physical harm and an ongoing police investigation in support of such a finding. Counsel for CBC relied on the following aspects to undermine that position:

1. the lack of detail describing the threat;
2. the most disturbing, violent threat being against the property manager who is not an affiant and thus hearsay; and
3. the absence of anything occurring in the month or so since the threats were made coupled with knowledge by the unit holders of my order May 29, 2019 appointing an Administrator and Inspector.

[13] However, my review of the evidence as a whole raises grave concerns. While I accept the submission by counsel for the CBC that the most disturbing, violent threat was against the property manager and not the affiant, this hearsay voice mail adds to my ability to give weight to the threats of harm made against the principal affiants (see paragraphs 33, 34 36 and 39 of his affidavit).

[14] Counsel for the CBC relied on the comments in R. v. Mentuk, 2001 SCC 76 (at paragraph 34) that “the risk in question be a serious one” or “real and substantial”. I agree. However, when email states “you’re 74 years old, who knows how many years you have …” is considered in the matrix of more direct threats of physical harm to the point of death and extended to family members, I conclude the first part of the test is met.

[15] Further, those involved have proceeded on the basis of publication ban would be sought and counsel submitted that lifting the ban would likely end their willingness to participate. This would impair the proper administration of justice.

[16] I reach this conclusion mindful of the law, as stated in R. v. Mentuk, supra (at paragraph 39) that it “is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban”.

[17] Regarding the second part of the test, counsel for the CBC raised a variety of reasons why the situation failed to meet the requisite standard including:

1. the appointment of the Administrator and Inspector is known to the unit holders and thus at odds with the reason the auditor, property manager and affiants and directors were being threatened;
2. the publication ban would not be effective in the circumstances;
3. the Administrator and Inspector was taking no position on this motion from which it should be inferred to as not supportive; and
4. there remained a public interest in having the situation widely disseminated, relying on general knowledge (as opposed to any detailed evidence) of the many condominium owners in the greater Toronto Area that would be interested in the consequences of when governance breaks down.

[18] I also raised, given the variation to the publication ban made on June 4, 2019, whether Mr. Lancaster had released a further article and was advised same had not occurred.

[19] On the basis of the evidence before me, I conclude the benefit of the modified publication ban in place since June 4, 2019 outweighs the detriment to our open courts and reporting on the proceedings occurring in them at this time. I do so having concluded on the evidence before me that this strikes the proper balance between individuals appearing as parties or witnesses before our courts, having protected Charter rights to security, and the fundamental right of the press to express its thoughts and beliefs.

[20] In this regard, I gave careful thought to the submissions of counsel for the CBC that no article had been released since the variation to the publication ban on June 4, 2019 because the events could not be probably told without identifying the affiants. Further, delay in publication was not a satisfactory answer. However, the material filed by the CBC included five articles prepared by Mr. Lancaster (and another) which were released between May, 2017 and February, 2018 about alleged “hijacking” Boards of Directors in “about a dozen high rises in Toronto and Mississauga over the last several years”. In particular, three individuals were identified and an action was apparently commenced against them to recover losses suffered as a result. These are not any of the individuals involved in this nor was any connection to them suggested.

[21] In the matter before me, the application was only issued May 23, 2019 or about one month ago and the evidence before me is going to be supplemented as part of an effort to set aside the appointment of the Administrator and Inspector on July 4, 2019. Further, as stated, the appointment of the Administrator and Inspector has been communicated to those directly involved being the unit holders so the need to protect our open court principle and the freedom of the press temporarily needs to be secondary to the safety of those threatened. Counsel for the CBC also sought clarification on any continued publication ban if made. Counsel sought:

1. that it not apply to any further decision or order made during the course of these proceedings;
2. that any continued publication ban not apply to material filed by York Region Standard Condominium Corporation No. [...], whose counsel advised they opposed the publication ban (but did not attend or make submissions before me);
3. the publication ban not apply to any material filed by the Administrator and Inspector as they took no position on this issue;
4. the publication ban not apply the identity of the respondent; and
5. that any continued publication ban be without prejudice to a further challenge on notice with such motion made in writing.

[22] As I have concluded, the revised publication ban of June 4 is to remain in place until overturned or varied. As stated then, the names of the Applicant and any affiants shall remain redacted. It may or may not be the subject of submissions by interested parties in this or subsequent orders. That is, I would conclude such a decision may be addressed when such a further order is made. Clearly, should material or evidence in addition to what was before me form a basis to renew or seek a further variation of the publication ban order in place, interested parties may utilize the Rules of Civil Procedure as they see fit. I decline to restrict or streamline any process of those interested in varying the publication ban they may wish to pursue.

[23] The parties confirmed their agreement as stated in my endorsement of June 4, 2019 that neither was seeking costs against the other for this motion.

Mr. Justice G. Dow Released: July 2, 2019