📜 The board’s proposed “Code of Ethics” contains the following clause:
Translation:
- Directors must keep quiet even when the board is wrong.
- No dissent, no transparency, no accountability.
🚫 Why It’s Illegal
🧩 1. It Conflicts with the Condominium Act, 1998
🧠 Directors’ Duty Is to the Corporation, Not to the Majority
“Every director and every officer of a corporation, in exercising the powers and discharging the duties of office shall,
(a) act honestly and in good faith; and
(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.”
— Condominium Act, 1998, S.O. 1998, c. 19, s. 37(1)
Directors must act honestly and in good faith – not obediently and in silence.
If a director sees financial abuse, discrimination, or manipulation, the law requires them to speak up, not to “keep their views to themselves.”
✅ Following this clause would itself breach the Act.
⚖️ By-Laws Cannot Override the Act
“A corporation may make, amend or repeal by-laws not inconsistent with this Act or the declaration.”
— Condominium Act, 1998, s. 56(1)
Any by-law or policy that forces directors to stay silent when the Act requires transparency is “inconsistent with the Act” – and therefore void.
💣 Silencing Dissent Is Oppressive Conduct
“On application of an owner… the court may make any order it deems proper if the conduct of the corporation, the board or the directors is or threatens to be oppressive or unfairly prejudicial… or unfairly disregards the interests of the applicant.”
— Condominium Act, 1998, s. 135(2)
Suppressing a director’s right to question or disclose wrongdoing is unfairly prejudicial to both that director and to the owners who rely on transparency.
That’s oppression – a recognized ground for court intervention.
🗣️ 2. It Offends Charter Values and Public Policy
“Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression…”
— Canadian Charter of Rights and Freedoms, s. 2(b)
A rule banning elected officials from expressing dissent violates the spirit of the Charter.
Courts have confirmed that even private organizations must respect Charter values in applying rules.
No democratic institution can lawfully tell an elected member to “shut up and agree.”
💡 3. It Undermines Fiduciary Oversight
The point of electing directors is to ensure checks and balances.
This clause destroys that.
It turns directors into rubber stamps, not fiduciaries.
Good governance requires independent judgment, not obedience.
As the Court of Appeal held, directors must exercise independent thought, even when that means opposing the majority.
🧭 The Legal Bottom Line
| Issue | Legal Authority | Result |
|---|---|---|
| Duty of Care and Honesty | Condominium Act s. 37(1) | Clause forces breach of duty |
| Consistency with Act | Condominium Act s. 56(1) | Clause is void for inconsistency |
| Oppression / Prejudice | Condominium Act s. 135(2) | Silencing dissent is oppressive |
| Freedom of Expression | Charter s. 2(b) | Violates public policy and democratic values |
💬 In Plain English
This “Support” clause isn’t ethics – it’s censorship.
It tells directors to protect the board, not the truth.
It replaces transparency with silence, and democracy with obedience.
You can’t build trust by silencing dissent.
You can’t call it “ethics” when it punishes honesty.
🧨 Final Verdict
❌ Illegal under the Condominium Act
❌ Void for inconsistency with statute
❌ Oppressive under s. 135
❌ Contrary to Charter values
This clause belongs in a dictatorship, not a condominium.
