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Our Lives, In Email

February 21, 2019

Court rulings emphasize practicality, ubiquity of email communication

While we are well past the days where expert witnesses were required when parties sought to lead email in evidence, this very universal (some would even say antiquated) mode of communication is still the subject of contention in various kinds of litigation. Recent case law suggests that Canadian courts are keen on the practical utility of email, particularly in situations where the underlying dispute is based around failure on the part of one party to communicate in a reasonable or timely manner.

In The Owners, Strata Plan NW 2089 v. Ruby, Registrar Neilsen of the British Columbia Supreme Court presided over a petition by a New Westminster strata (condominium) corporation to: enforce a lien that had been entered against the unit owned by Ruby, in the amount of $4,532.33; or enforce sale of the unit if the lien was not discharged. There was an underlying dispute regarding payment for upgrades to elevators in the building, in particular whether commercial tenants would pay and in what amount. Ruby was employed as a tour manager and was most often away at least 6 months of the year, sometimes consecutively, and sometimes longer. He had regularly used email in order to communicate with the management of the corporation. He was aware of the dispute regarding the elevator upgrades but at all relevant times had the impression that no decisions had been made.

In September and November of 2017 the corporation had sent letters to Ruby notifying him of a special levy on owners to pay for the elevator upgrades. Ruby was out of town and did not receive the letters. In December 2017 the corporation sent Ruby an email referring to the letters and informing him that they were commencing “forced sale proceedings.” Ruby responded immediately and offered to pay the special levy, but over the course of communications (this time by email) it was made clear that the court proceedings would still be brought unless he also paid “special legal costs” in amounts up to $2,700. He refused to pay these and the petition went ahead.

Ruby provided substantial evidence that he had corresponded regularly with the corporation via email for well over a decade preceding this particular matter, and that in particular he had dealt with disputes regarding special levies by email on previous occasions. As the Registrar noted, the Strata Property Act provided for various means of communication between corporations and owners, including email, and in this case the corporation had not responded to Ruby’s evidence regarding past email communication. Regardless of the corporation’s policy preferring written communication, it was clear that there was a history of regular communication regarding strata matters by email, and there was no explanation from the corporation as to why they had “handed the matter over to their lawyers” (who, ironically enough, dealt with Ruby exclusively by email). The legal costs were held to be “unreasonable in their entirety” by the Registrar, who ruled:

In my view, this entire proceeding could have been avoided had the petitioner sent a single email to the respondent, demanding payment of the special levy, as it had in the past, before handing the matter over to their lawyers and incurring legal costs…Upon receipt of the first email demanding payment of the special levy the respondent promptly acknowledged his liability and agreed to pay. He did not agree to pay legal fees which he felt were needlessly incurred. Regretfully, he was not permitted to pay the special levy unless it was accompanied by full payment of the legal fees claimed. The escalating claim for legal fees became a club to cow the respondent into submission.

The claim for costs was disallowed and Ruby received his costs for the hearing.

Unreasonable email use against the background of a petty dispute also featured in Hemming v JAZZ.FM 91 Inc., in which a dissident group among the members of a small non-profit organization appears to have been seeking a meeting of the entire membership. It requested contact information for the members, but the organization chose to withhold email addresses from disclosure, even though it was “the primary means of notice used to contact the overwhelming number of members.” Justice Dunphy of the Ontario Superior Court ordered that the list of email addresses be produced, chiding the organization for a practice “clearly adopted to frustrate the applicants” and which placed “needless/pointless obstacles in favour [sic] of communication.” Having cited the needlessly adversarial nature of the dispute (the judge commented in oral remarks that there were three lawyers on each side of the matter), partial indemnity costs in the amount of $20,000 were awarded against the non-profit. [Editors’ note: we can’t believe it, either]

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