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Email Exchanges Between Directors Can Be Defamatory

Directors should be careful about what they email to one another or what they email to owners. There are plenty of instances where communications between directors (or communications to owners) have lead to defamation lawsuits.

Defamation covers any communication that tends to lower the esteem ordinary members of the public may have of someone. Sometimes, even innuendos or suggestions may be defamatory.

In a 2014 case, the Divisional Court dealt with a case involving a defamation claim as between directors of a housing cooperative. In that case, one of the directors left a board meeting with a copy of a confidential report dealing with the eviction of a member of the cooperative.  After the meeting, another director wrote to all of the other ones alleging (at least indirectly) that these documents had been stolen by the director. That director then sued for defamation.  Indeed, alleging theft of a document imputes the commission of a criminal offence or the illegal removal of property. This is a serious allegation which may undermine the honesty and integrity of a person.

The court concluded that referring to theft in this instance was overreaching and done with the intent to harm or, at least, with a total and reckless disregard for the truth. The court awarded $7,500 in damages plus $12,000 in costs to the defamed director.

With the immediacy and brevity of emails, comes an increased risk that certain communications go beyond what is necessary or that they be taken out of context. Before firing off an email, ensure that its content is absolutely (and verifiably) true.  Ensure that the communication is necessary (don’t go beyond what is necessary to convey your message; in this case, rather than writing “theft of a document”, the director could have perhaps considered writing “removal of a document”). Avoid sending the email to others (defamation requires that the communication be made to third parties). Avoid sending an email while you are upset. Finally, avoid any unnecessary innuendos.

The best precaution is likely to sleep on an email before hitting the “send” button.