As the deterioration of society supposedly continues and with municipal election season rapidly approaching (with its related canvassing), the temptation to physically remove unwanted visitors at your condo building is probably reaching its peak.
While condominiums are increasingly viewed as a secure sanctuary from the outside world, protected by heavy doors, security and staff, a recent decision of the Ontario Superior Court of Justice sends a warning about manhandling unwelcome guests.
At issue in the case of Jia v. TSCC 1479 is an ugly assault and battery perpetrated by a condominium superintendent against a visitor. The case offers a number of important lessons for condo boards and managers.
Some of the highlights of the judge’s decision-making process and her findings are set out below. The paragraph numbers are as they appear in the court’s written decision. At the end, we offer some suggestions to help keep your condo out of danger.
From the decision itself:
 Ms. Jia is 45 years old. She immigrated to Canada with her young son in 1998. Trained as a professional engineer, Ms. Jia became a full time real estate agent in November 2001 and has worked with Re/Max Crossroads Realty Inc. since October 2005.
 Mr. Keeley started employment as the first relief superintendent with Forest Vista on December 1, 2006. He was on its board from 2002 to 2008 and owned a condominium unit in the building until 2005. Prior to his employment with Forest Vista, he spent over thirty years as a police constable with the Toronto Police Services from which he retired in 2006.
 The following facts are undisputed. In the early evening of January 31, 2007, Ms. Jia went to the 61 Town Centre Court condominium complex to meet her clients, Yi Bing Gao and Shu Ye, who owned unit 2001. They were in the process of selling their condominium unit and wished to retrieve the unit’s keys from their tenant who was moving out of the unit, return the tenant’s deposit, inspect the unit, and obtain a status certificate from Forest Vista. Ms. Jia was the listing agent on the sale of unit 2001.
 Mr. Gao and Ms. Ye tried to obtain a key to their unit from Cecilia Badu, the security guard employed by Del Property who was on duty that evening. They became angry with her when she could not give them a key or access to their unit. Ultimately, they reached their tenant at his new residence and arranged to meet him there to obtain keys to the unit. They asked Ms. Jia to wait for them in the inner lobby of the condominium unit, which she did, with Ms. Badu’s permission.
 Responding to a call from Andrea Cooper, the Condominium Manager of Forest Vista, arising out of Ms. Badu’s conversation with the unit owners, Mr. Keeley approached Ms. Jia who was sitting in the inner lobby. It is not disputed that Mr. Keeley asked Ms. Jia to leave, that she did not immediately comply with his request, and that he subsequently physically ejected her from the inner lobby.
 The security camera located in the exterior lobby of the building recorded the exit by Mr. Keeley and Ms. Jia from the inner lobby and their interactions in the exterior lobby of the condominium.
Unfortunately, the camera did not capture the assault that took place in the inner lobby. As a result, this case is a classic “he said, she said” story that makes for interesting reading for “Law and Order” fans.
First question: Was Ms. Jia trespassing?
After considering all the evidence, the court found:
 In the present case, I find that Ms. Jia was not trespassing. She had been given permission by Forest Vista’s authorized agent to remain in the lobby. As Mr. Keeley admitted, security guards would ordinarily ask trespassers to leave. Ms. Badu did not ask him to remove Ms. Jia or issue a trespass notice or ask Ms. Jia to leave because she was sitting quietly. Without reasonable explanation or justification, Mr. Keeley peremptorily revoked that licence.
 As a result, I find that Mr. Keeley had no reasonable basis for asking Ms. Jia to leave, for arresting her or for ejecting her.
Second question: Was Mr. Keeley justified in using force and did Mr. Keeley use reasonable force to eject Ms. Jia as a trespasser?
 The force that Mr. Keeley used was unnecessary in the circumstances of this case. Even if he had good reason to arrest and eject Ms. Jia, the force that he used was excessive.
 While there is no question that occupiers may direct persons to leave their property, as the defendants acknowledged, it must be done on a reasonable basis. An occupier must consider whether the use of force is a necessary or reasonable course of action in the first place and whether it might lead to a confrontation more serious than the alleged trespass. The latitude shown to a police officer will not necessarily be shown to an occupier who is under no duty to act and who instigates a confrontation with a trespasser, as I have found Mr. Keeley did in the present case.
 On January 31, 2007, Mr. Keeley weighed 230 pounds; and he is 5 feet and 10 inches tall. On that date, Ms. Jia weighed 110 pounds. She is around 5 feet four inches tall. Ms. Jia was thrown on the floor by Mr. Keeley and she landed on her back. She was inert just before he pinned her to the floor with his knee on her chest and his hands to her throat.
 There can be no justification for this kind of excessive force in the circumstances of this case as I have found them.
Third question: Did Ms. Jia willingly assume the risk of injury?
 As I have already found, Ms. Jia’s refusal to comply immediately with Mr. Keeley’s request that she leave was reasonable in the circumstances of this case where she had been permitted to stay, had done nothing wrong, and there was no reason for her to leave. Mr. Keeley overreacted and did not give her a reasonable opportunity to understand the situation and to comply before he physically arrested and ejected her.
 In these circumstances, it is not reasonable that Ms. Jia should have assumed that her mild resistance would have led to the kind of physical and dramatic altercation that ensued with Mr. Keeley. As Ms. Jia stated, if she had known that she was going to be assaulted, she would have left immediately and waited in her car for her clients’ return.
 When Ms. Jia reasonably questioned his authority, given Ms. Badu’s permission for her to sit in the lobby, Mr. Keeley overreacted and the situation escalated out of control. Ms. Jia was not given a reasonable time to comply. As Mr. Keeley ruefully acknowledged during his cross-examination, he wished he would have done things differently.
Fourth question: Is the property management firm liable for any losses suffered by Ms. Jia?
 As occupier of the premises, Forest Vista has a positive duty to take such care as is reasonable to keep the premises reasonably safe for all persons in attendance. Forest Vista, as Mr. Keeley’s employer, and not Del Property Management, is vicariously liable for Mr. Keeley’s actions.
 No employee or agent of Del Property participated in Mr. Keeley’s assault and battery of Ms. Jia. There is no evidence that Ms. Badu saw Mr. Keeley assault Ms. Jia and fail to intervene. As Ms. Jia and Mr. Keeley both testified, the altercation occurred very quickly. According to Ms. Badu’s uncontested evidence, she did not see Ms. Jia and Mr. Keeley until they emerged into the outer lobby. By the time that she returned to the window of the security office and saw them, Ms. Jia and Mr. Keeley had disengaged.
 As a result, I do not find that Del Property Management is liable for any losses suffered by Ms. Jia.
Fifth: What damages, if any, did Ms. Jia suffer?
The plaintiff sought money under four different heads of damages in this case. The court considered each of them in turn.
 The evidence establishes that Ms. Jia suffered extensive bruising, three broken ribs, and significant emotional distress as a result of the assault committed by Mr. Keeley.
 Ms. Jia was unable to sleep, had to take heavy pain and sleeping medications, could not care for her young son, drive or return to work for several weeks, and she suffered considerable physical and emotional pain for many months. She continues to have pain when the weather changes.
 Based on my survey of the case law provided, these circumstances warrant an award of general damages in the amount of $30,000.
 Ms. Jia asks to increase the award of general, non pecuniary damages because of aggravating features of Mr. Keeley’s conduct.
 Aggravated damages are intended to compensate a plaintiff whose injuries have been exacerbated by particularly outrageous conduct. They are appropriate where a defendant’s conduct has been particularly high-handed or oppressive. In particular, in cases of assault and battery, aggravated damages have been awarded if the assault and battery occurred in humiliating or undignified circumstances.
 In my view, this case warrants increasing the award of general damages because of the particularly aggravating and high-handed conduct of Mr. Keeley for which Forest Vista is also vicariously responsible. As I have already found, the force used by Mr. Keeley was excessive and unnecessary in the circumstances of this case. It was particularly humiliating to Ms. Jia, a professional woman, to be dragged out of the lobby, where she was quietly waiting for her clients, flung to the ground and pinned there by Mr. Keeley. She then had the embarrassment of having to explain to her family and clients what had occurred.
 Mr. Keeley has never apologized to Ms. Jia for his conduct. Instead, as I have found, he constructed an elaborate fabrication of what occurred in an attempt to avoid responsibility for his miscalculation and overreaction. To make matters worse, Mr. Keeley laid a private complaint of assault against Ms. Jia; and he misrepresented what occurred to Forest Vista so that the latter wrote an accusatory letter about Ms. Jia to her real estate broker through whom she earned her livelihood and to whom she, again, had to suffer the humiliation of explaining what had occurred.
 Mr. Keeley’s conduct during the assault and afterwards had the effect of increasing Ms. Jia’s humiliation and anxiety and worsening her mental and physical conditions. As a result, Ms. Jia is entitled to aggravated damages in the amount of $8,500.
 Ms. Jia claims the amounts of $995.13 as OHIP’s subrogated claim and $45.00 for Ms. Jia’s ambulance bill. These amounts are not contested and I allow them.
 Although at first glance it appears that Ms. Jia did not suffer any loss of income for the weeks missed in 2007, the evidence establishes to my satisfaction that she suffered an income loss of at least $10,000 . . .
 In consequence, I hold that Ms. Jia has suffered a loss of income of $10,000 as a result of her absence from work during the period February, March and April 2007.
 Finally, Ms. Jia submits that the assault committed by Mr. Keeley justifies an award of punitive damages.
 The Supreme Court of Canada in Whiten v. Pilot Insurance Co. set out thorough and helpful guidelines to assist courts in determining whether and when punitive damages should be awarded. . . .
 Applying the above noted criteria to the present case, I am of the view that, while Mr. Keeley clearly and inappropriately overreacted in his interactions with Ms. Jia, I do not believe that his conduct at the time of the assault reached the extraordinary stratum of vicious outrageousness that would require this court’s further denunciation and punishment, such as was the case in Herman v. Gironda and Dogan v. Pakulski.
 Further, it can be said that Mr. Keeley has already been punished under the criminal law in that the assault charges were dropped against him because he agreed to enter into a peace bond.
 As a result, I decline to award punitive damages.
The plaintiff obtained a judgment for $49,540 against the condominium corporation and the superintendent. The court found that these defendants were jointly and severally liable to pay, meaning that the plaintiff can collect the money from whoever she wishes. As a practical matter, the condominium corporation would be the easy choice. The condo and the super can subsequently fight amongst themselves over who will (or who can) ultimately pay the judgment, but there is typically no reasonable prospect of collecting money from an employee in such circumstances.
The claim against the property management firm was dismissed.
In addition to the principal amount, interest is payable in this case, and potentially the plaintiff’s legal costs as well as whatever legal defence costs are not covered by insurance. The total outlay could be $100,000 or more on an expenditure that most unit owners would definitely not be pleased with.
1. Employers are vicariously liable for the acts of their employees. As always, condo corporations should be careful about who they hire and should discipline/terminate employees who demonstrate violent tendencies towards people.
2. It is also important to make it precisely clear as to who the employer is – either the condo or the management firm. This should not be vague or uncertain.
3. Condominium corporations are the “occupiers” of their common elements and, as such, have a positive duty to take such care as is reasonable to keep their premises reasonably safe for all persons in attendance. This means more than clearing ice and snow.
4. It should be a written policy that ejecting trespassers be left to trained security personnel or, better yet, the police. In this day and age, there is no room for the cowboy tactics demonstrated in this case. Consider the result if this super had gotten himself shot or stabbed during a physical confrontation with a trespasser.
5. Management is responsible to oversee staff and has a duty to act immediately and effectively if they observe staff exceeding their mandates or acting badly towards other people. Had the property management firm or its employees witnessed the assault and done nothing, they might have been found partly liable in this case.
6. Have a clear written policy on the role of the concierge/security guard when it comes to handling keys and permitting access to suites. The confrontation in this case began when the unit owners and their realtor unsuccessfully sought access to a suite.
7. Condo corporations should ensure that their insurance specifically covers the acts (including criminal acts) of its employees.
8. As for municipal elections and canvassing, it is both unwise and illegal to interfere with candidates and their representatives making reasonable access to condominium property for canvassing or distributing election material. See section 118 of the Condominium Act, 1998.
For full text of decision, see here.