Kangaroo court


“An unofficial court held by a group of people in order to try someone regarded, especially without good evidence, as guilty of a crime or misdemeanour”
—Oxford dictionary
 
“A judicial proceeding or trial which has a predetermined outcome or where the basic legal rights of a party are jumped over.”
—Duhaime.org

The Ethics Review process may be a quick and sure way to remove a director off the board but it may be very problematic the minority directors and for the condo owners because the Ethnic Review is a flawed process.

At its worse, an Ethics Review resembles a school yard clique rejecting a new kid who doesn't fit in with the group.

Kangaroo court
As Justice J.R. McCarthy stated: "an Ethics Review" is not a judicial review of a statutorily created and defined administrative tribunal charged with adjudication under a statute." The majority of the board have a pretty free hand to run the process as they see fit.

The "accused" is not present during the final deliberations to hear what is said, understand what weight was placed on each piece of "evidence" or if any unsubstantiated evidence was raised. It is quite possible that one participant could use undue pressure to get the other directors' agreement.

As one property manager said when questioned about the proposed ethics review procedures: "the process could be changed on a whim."

An instrument of the majority
The Ethics Review can only be used by a majority or directors against the minority but not the other way around. If two directors discover that the majority had, or are presently acting unethically, they cannot convene an Ethics Review to “try” the majority. They’d need to requisition an owners meeting in order to vote the majority out of office.
 
Any attempt by the minority to remove the unethical majority could provoke the majority to convene an Ethics Review to remove the requisitionists.

Arbitrary
The decision to call an Ethics Review can be very arbitrary. The majority of the board may ignore misconduct by their clique but be very unforgiving against a director who is a political opponent.

Stifles debate
Minority directors who find themselves bullied by the majority will be less willing to speak their minds at board meetings when Ethic Reviews are hanging over their heads.

A means of purging dissents
The Ethics Review may be used to remove directors who wish to replace the property management company or any other “favourite” contractor or to remove any director who disagrees with the majority on issues such as raising fees or hiding information from the owners.
 
Lack neutral and detached jurists
The majority of the directors have no legal training or understanding of the duties of a jurist. Since they have, most likely, been active in gathering the “evidence” against the accused, how can they then act as objective “judges”?

The accused should have the right to have uninterested third parties as as the "judges" instead of his fellow directors who's hands are not clean.
 
No presumption of innocence
“Hang’em first, try 'em later.”
—Judge Roy Bean

The director, or directors that is/are accused of ethical breaches are treated as guilty parties before the review takes place.
 
There are meetings among the majority directors where they decide to press “charges” and while they are collecting evidence. They get in touch with the corporation’s lawyer to get advise on how to proceed. All of this is done without the “accused” being aware it is happening.
 
The corporate lawyer may chair the Ethics Review and act as the prosecutor. A lawyer actually badgered one of the “accused” to resign. When the “accused” ask a question about his rights, prior to the vote being taken, the lawyer replied: “I am not your lawyer.”
 
If this is so, since the “accused” is still a member of the board, who did she represent? How could the corporation lawyer be engaged without one of the directors being informed? How can there be any doubt to the outcome of the vote if this was her demeanor?

Stale evidence
Incidents that happened months earlier, and were not raised as a concern at the time, are used as evidence during the review to prove that the “accused” violated the code three times.

Cowardly
The majority of the directors, the management and the corporation lawyer act in secrecy and without the authorization of a resolution passed by a vote of the full board of directors.

Alternatively, the board members wait until the "rogue" director goes on vacation or is otherwise unavailable when they call board meetings to authorize their actions.

Polarizes the community
In several condos, the directors have canvassed the employees, contractors and some of the owners during their hunt for evidence to use against the "rogue" director.

By these actions, the directors may split the community into two opposing political camps.
 
Not proportional
A very minor breach of the code is treated as an equal to a very serious violation such as:

•	swearing at a board meeting in the heat of an argument.	•	assaulting a director.
•	telling the owners that the plumber is incompetent.	•	having an undeclared interest in a company bidding on a contract.
•	rolling your eyes at a board meeting.	•	getting the condo's contractors work on your apartment for free.
•	wanting to replace the management company.	•	accepting a kickback.
•	being "argumentative" at board meetings.	•	engaging in human rights violations.

Punitive not corrective
In baseball, after every pitch, the umpire makes his call so the batter knows where he stands.
 
In labour-relations, when an employee does wrong, he will receive progressive discipline, a series of verbal and written warnings prior to termination. No arbitrator would allow an employee to be fired if there was not deliberate repeated misconduct and the director was not given prior warnings of poor behaviour and a chance to improve.
 
Yet, it appears that so far, the majority of the board clandestinely collects “evidence” of misconduct and wait until they have three or more incidents of alleged misconduct before holding a review so there is no opportunity given to the director to improve his behaviour.
 
Rough justice
If the Ethic Reviews were progressive in nature, then an offending director would have required three Ethic Reviews finding him guilty of a breach of the ethics agreement. Instead the "offensives" may be secretly collected until a third breach triggers the review.

Punishing sanctions
Will the majority directors shirk from threatening 'rogue" directors with the addition of all the costs associated with Ethics Review onto their common element fees if they do not hand in a written resignation?

Is so, is this a sign of justice or will it be a mark of bully boys running amuck?

Shaming


The board may post notices around the building stating that the deposed director was found to have violated the code of ethics three or more times. Having your name posted as an unethical person for all to see is more than unfair and appears to be designed to discredit the owner's reputation.

Is this designed to prevent the deposed director from being a candidate in the next election? Perhaps.

Exile
At times, the purged director feels pressure to sell his home and leave the condo community. I was told that during one Ethics Review, the corporation lawyer told the deposed director that: "You do not belong in this community".

Stifles participation
Democracy suffers when these tribunals are used to remove directors who are well thought of in the condo community.

Other owners, may not consider running as candidates for a seat on the board when the see how a minority director was treated by the rest of the board.

Requires expensive appeals
The bylaws may state that the board's decision can only be overturned by the courts. This is an expensive, and perhaps an unaffordable, means of appealing an unjust decision as a full trial with sworn testimony may be required.

The costs of an appeal must be paid by the deposed director while the majority of the directors get their costs paid by the owners through their condo fees.

The deposed director should be able to appeal the majority's decision to the owners at an owners meeting called for that purpose.


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