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Good evening.

Following are this week’s summaries of the Court of Appeal for Ontario. The theme of the week was real property and condominiums.

In York Region Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., 2020 ONCA 63, the Court took the rare step of overruling itself. In this case, the prior precedent that was overruled was the Court’s decision in York Condominium Corp. No. 46 v. Medhurst, Hogg & Associates Ltd. et al. (1983), 41 O.R. (2d) 800 (C.A.). That decision concerned the central issue in the present case: does a condominium corporation’s failure to comply with the notice provision in s. 23(2) of the Condominium Act, 1998 render an action commenced by the coproration a nullity? The court concluded that the decision in Medhurst has been attenuated by subsequent Supreme Court of Canada jurisprudence. It has also generated unnecessarily harsh effects which were inconsistent with the purpose of the notice provision pursuant to the principles of modern statutory interpretation. Accordingly, the prior precedent was overruled by a five-member panel of the Court.Other topics covered this week included the oppression remedy under the Condominium Act and special assessments, adverse possession of an outhouse, powers of attorney, material misrepresentation of immigration status in respect of life insurance, mortgages, exclusion and arbitration clauses, burden of proof in the standard of care in negligence, life interests in real property, relief from forfeiture of deposits and service of process.

Please join me and Lea Nebel at our “Top Appeals of 2019” CLE (registration is now open at the OBA’s website), dinner program to take place at the OBA on Thursday, February 27, 2020. Three decisions will be featured. The first is Darmar Farms v Sygenta, which deals with the potential new tort of “premature commercialization” and pure economic loss in product liability context. The second is The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. The third is Wright v Urbanek, which deals with the scope of the doctrines of abuse of process and collateral attack.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Armstrong v. Moore, 2020 ONCA 49

Keywords: Real Property, Adverse Possession, Torts, Negligence, Spoliation, Damages, Mitigation, Punitive Damages, Real Property Limitations Act, R.S.O. 1990, c L 15, s.4, Barbour v Bailey, 2016 ONCA 98, Housen v. Nikolaisen, 2002 SCC 33, Bison Realty Ltd. v. Athersych (1998), 19 RPR (3d) 48, TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, Whiten v. Pilot Insurance Co., 2002 SCC 18

Noguera v. Muskoka Condominium Corporation No. 22, 2020 ONCA 46

Keywords: Real Property, Condominiums, Oppression, Condominium Act, 1998, SO 1998, c 19, s 32, s40, s 98, s 135, BCE Inc v 1976 Debentureholders, 2008 SCC 69

Boodoo v. Merrick, 2020 ONCA 52

Keywords: Civil Procedure, Service of Documents, Motions, Chiarelli v. Wiens, (2000), 46 O.R. (3d) 780

Hydro Hawkesbury v. ABB Inc., 2020 ONCA 53

Keywords: Contracts, Arbitration Agreements, Exclusion Clauses, Consequential Damages, Civil Procedure, Crossclaims, Tilden Rent-a-Car Co. v. Clendenning (1978), 18 OR (2d) 601 (CA)

Royal Canadian Mortgage Investment Corporation v. 1835923 Ontario Ltd., 2020 ONCA 55

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals in Writing

Lewis v. Lewis, 2020 ONCA 56

Keywords: Wills and Estates, Substitute Decisions, Powers of Attorney, Attorneys for Property, Passing of Accounts, Substitute Decisions Act, 1992, S.O. 1992, c. 30, Groh v. Steele, 2017 ONSC 3625, Dzelme v. Dzelme, 2018 ONCA 1018

Mohammad v. The Manufacturers Life Insurance Company, 2020 ONCA 57

Keywords: Contracts, Life Insurance, Rescission, Material Misrepresentation, Summary Judgment, Insurance Act, RSO 1990, c I8 s 184(2), Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, Carter v. Boehm (1766), 3 Burr. 1905 (Eng. K.B.)

1552443 Ontario Inc. v. Nipissing Vacant Land Condominium Corporation No. 41, 2020 ONCA 74

Keywords: Real Property, Condominiums, Special Assessments

Aylward v. Rebuild Response Group Inc., 2020 ONCA 62

Keywords: Contracts, Construction, Deposits, Relief from Forfeiture, Courts of Justice Act, RSO 1990, c C43, s 98, Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282

Donaldson v. Braybrook, 2020 ONCA 66

Keywords: Wills and Estates, Property Law, Real Property, Joint Tenancy, Life Interests, , Unjust Enrichment, Presumption of Resulting Trust, Pecore v. Pecore, 2007 SCC 17, Pecore v. Pecore (2005), 17 R.F.L. (6th) 261 (Ont. C.A.)

Metropolitan Toronto Condominium Corporation No. 1100 v. A. & G. Shanks Plumbing & Heating Limited, 2020 ONCA 67

Keywords: Torts, Negligence, Standard of Care, Evidence, Burden of Proof, Expert Evidence, Circumstantial Evidence, Causation, Fontaine v British Columbia (Official Administrator), [1998] 1 SCR 424, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656

York Region Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., 2020 ONCA 63

Keywords: Real Property, Condominiums, Civil Procedure, Originating Process, Notice, Stare Decisis, Statutory Interpretation, Condominium Act, 1998, S.O. 1998, c. 19, Rules of Civil Procedure, Rule 14, York Condominium Corp. No. 46 v. Medhurst, Hogg & Associates Ltd. et al. (1983), 41 O.R. (2d) 800 (C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344, David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161 (C.A.), leave to appeal ref’d, [2005] S.C.C.A. No. 388-95

Short Civil Decisions

Gilby v. Rowbotham, 2020 ONCA 51

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Summary Judgment

Criminal Decisions

R. v. B.D., 2020 ONCA 50 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Right to Counsel, Canadian Charter of Rights and Freedoms, s. 10(b)

R. v. G.D., 2020 ONCA 48 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Sexual Interference, R. v. W.(D.), [1991] 1 S.C.R. 742

R. v. S.G., 2020 ONCA 42

Keywords: Criminal Law, Drug Offences, Right to Counsel, Canadian Charter of Rights and Freedoms, s. 10(b), 24(2), R. v. G.T.D., 2018 SCC 7, R. v. Plaha (2004), 188 C.C.C. (3d) 289 (ONCA), R. v. Grant, 2009 SCC 32

R. v. A.V., 2020 ONCA 58 (Publication Ban)

Keywords: Criminal Law, Sexual Interference, Sexual Exploitation, Sexual Assault, Evidence, Admissibility, Prior Consistent Statements R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Dinardo, 2008 SCC 24

R. v. C.G., 2020 ONCA 60

Keywords: Criminal Law, Criminal Negligence Causing Death, Criminal Negligence Causing Bodily Harm, Dangerous Driving, Defences, Automatism, R. v. Hundal, [1993] 1 S.C.R. 867, R. v. Beatty, 2008 SCC 5, R. v. Creighton, [1993] 3 S.C.R. 3

R. v. R.T., 2020 ONCA 47

Keywords: Criminal Law, Impaired Driving, Refusal to Comply, Canadian Charter of Rights and Freedom, s. 10(b), Criminal Code, s. 253(1)(a), 254(3.1), 254(3.4)(a), 254(5), R. v. Sinclair, 2010 SCC 35

R. v. H.A., 2020 ONCA 65

Keywords: Criminal Law, Motion for Directions, Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a)

R. v. H.H., 2020 ONCA 59 (Publication Ban)

Keywords: Criminal Law, Criminal Harassment, Sexual Assault, Sexual Interference, Evidence, Admissibility, Criminal Code, s. 686(1)(a)(i), R. v. Savoury (2015), 200 C.C.C. (3d) 94 (ONCA), R. v. Jack, 2013 ONCA 80

R. v. H.L., 2020 ONCA 70

Keywords: Criminal Law, Sentencing, R. v. Lacasse, 2015 SCC 64

R. v. M.S., 2020 ONCA 61 (Publication Ban)

Keywords: Criminal Law, Trafficking in Persons, Theft, Jury Charge, Sentencing, Criminal Code, s. 279.01(1), 279.04(1), 601(3)(b), R. v. Gallone, 2019 ONCA 663

R. v. M.Y., 2020 ONCA 69 (Publication Ban)

Keywords: Criminal Law, Robbery, Unlawful Confinement, Breach of Recognizance, Kienapple v. R., [1975] 1 S.C.R. 729

R. v. D.L., 2020 ONCA 77 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Sexual Interference

R. v. P.J., 2020 ONCA 73

Keywords: Criminal Law, Second Degree Murder, Self-Defence, Evidence, Admissibility, Youth Offenders, Criminal Code, s. 231(2), 235(5)(e), 745.1(c), Youth Criminal Justice Act, S.C. 2002, c. 1, s. 146(2), R. v. J.(J.T.), [1990] 2 S.C.R. 755, R. v. Storrey, [1990] 1 S.C.R. 241, R. v. Grant, 2009 SCC 32

R. v. M.R.M., 2020 ONCA 75 (Publication Ban)

Keywords: Criminal Law, Incest, Bail Pending Appeal, Sentencing, Mandatory Minimum Sentence, Criminal Code, s. 679(1)(b), 679(4), R. v. Nur, 2015 SCC 15

R. v. C.M., 2020 ONCA 76 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Evidence, Credibility

R. v. R.C.M., 2020 ONCA 78 (Publication Ban)

Keywords: Criminal Law, Child Luring, Criminal Code, s. 172.1(1)(b)

R. v. D.R., 2020 ONCA 64 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Evidence, Credibility, Sentencing, Criminal Code, s. 153(1), 718.1(a)


CIVIL DECISIONS

Armstrong v. Moore, 2020 ONCA 49

[Strathy C.J.O., MacPherson and Jamal JJ.A.]

Counsel:

Stuart R. Mackay, for the appellants/respondents by way of cross-appeal W.J.A. and T.J.A.
Shawn J. O’Connor, for the respondent/appellant by way of cross-appeal R.W.M.
Joseph W.L. Griffiths and Matthew G. T. Glass, for the respondent/appellant by
way of cross-appeal H.M. and for the respondent L.M.M.
No one appearing for the self-represented respondent L.C. (written submissions only)
No one appearing for the respondents L.J.E. and C.E.E.

Keywords: Real Property, Adverse Possession, Torts, Negligence, Spoliation, Damages, Mitigation, Punitive Damages, Real Property Limitations Act, R.S.O. 1990, c L 15, s.4, Barbour v Bailey, 2016 ONCA 98, Housen v. Nikolaisen, 2002 SCC 33, Bison Realty Ltd. v. Athersych (1998), 19 RPR (3d) 48, TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, Whiten v. Pilot Insurance Co., 2002 SCC 18

facts:

This appeal involved claims for adverse possession and damages in respect of an outhouse. The outhouse in question was the only toilet servicing the A’s property, located on a non-travelled portion of the right of way, where it had sat for 40 years. While the outhouse was located on the M’s property, the A’s treated it as part of their cottage.

In 2006, the respondent, R.M., acquired property uphill from the A’s property and began renovations. He placed a large amount of fill on his land. When W.A. raised concerns that the fill may seep onto his property. Subsequently, a washout on R.M.’s property caused mud and water to surround the entire outhouse. The A’s allege that this rendered their cottage unusable since this was their only toilet and they were of the opinion they could not get a permit to build a new one. They retained an engineer who advised them that they were at risk of further washouts and recommended installing a retaining wall. The A’s did not use their cottage again.

In 2009, the A’s sued R. M. for $250,000 in compensatory and punitive damages, claiming that his negligence resulted in the loss of the use and enjoyment of their cottage. Also in 2009, H. M. learned of potential claims for adverse possession in connection with his property and removed cedars and posted signs warning other residents that they might lose their right of way if the adverse possession claims succeeded. Later, the shed and outhouse were destroyed when someone dumped snow and gravel on them.

In 2011, the A’s began a second action claiming adverse possession of the lands involving the outhouse, shed, and surrounding cedars, and $100,000 in damages against the M’s and others for the destruction of their outhouse and shed, for the loss of the use of their cottage, and for promoting animosity against them.

The trial judge rejected the adverse possession claim because he concluded that the A’s had not established that their predecessors in title had intended to permanently exclude the rights of the registered owners of the fee or of the right of way.

The trial judge found R. M. negligent in placing fill on his land in a way that unreasonably interfered with the rights of his neighbours. However, he found that the A’s had failed to prove the quantum of their damages and had not mitigated their loss by cleaning up, repairing, or rebuilding their outhouse. He therefore awarded only nominal damages. The trial judge also found H.M. liable for aiding, abetting, and encouraging the destruction of the outhouse.

Finally, the trial judge found H liable for $5,000 in punitive damages for exacerbating the conflict between the parties, exposing the outhouse to further damage by removing the cedars, encouraging vandalism, engaging in intimidation, and for spoliation of evidence to impede the adverse possession claim by removing the cedars and their stumps so that their age could not be verified.

issues:

(1) Did the trial judge err in rejecting the claim for adverse possession?

(2) Did the trial judge err in rejecting the claim for abandonment of rights of way?

(3) Did the trial judge err in awarding nominal compensatory damages?

(4) Did the trial judge err in awarding nominal punitive damages against H.M.?

holding:

Appeal dismissed. Cross-appeal dismissed.

reasoning:

(1) No. To succeed on a claim for adverse possession, a claimant must establish possession that is open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner throughout a ten-year period. The claimant must prove: (i) actual possession of the land in issue; (ii) an intention to exclude the true owner from possession of their land; and (iii) effective exclusion of the true owner from possession of their land. The trial judge concluded that the A’s had not established the second and third requirements: an intention to exclude and effective exclusion of the true owner from possession.

The trial judge noted that the outhouse had been moved by one of the A’s predecessors in title at the request of another landowner to whom H. M. and L. M. had sold property on which the outhouse had formerly been located. The trial judge found that this “raises an inference that the outhouse was originally put in the new location with the consent of the M’s.” The A’s asserted that the evidence did not permit the trial judge to infer that the outhouse was placed in its current location with the M’s consent or permission and that he conflated permission with acquiescence. The appeal judge did not accept this position. Absent palpable and overriding error, the court must defer to a trial judge’s findings of fact and inferences drawn from facts.

(2) No. The A’s contended that the trial judge “conflated the test for adverse possession with the test for abandonment of easement”. The Court rejected this submission. The trial judge found on the evidence that the A’s predecessors in title did not intend to exclude permanently the rights of way of the other property owners, and that the use actually made of the land “was not obviously inconsistent with their rights.” The intention of abandonment cannot be proved simply by non-use. The trial judge correctly identified the applicable legal principles and his application of those principles were entitled to deference.

(3) No. The A’s complained that the trial judge awarded too little; the M’s complained that he awarded too much. The Court rejected both positions. Once the applicable legal principles are correctly identified, a trial judge’s assessment of damages attracts considerable deference before the Court of Appeal. Appellate interference is justified “only where the trial judge made an error in principle, misapprehended the evidence, failed to consider relevant factors, considered irrelevant factors, made an award without any evidentiary foundation, or otherwise made a wholly erroneous assessment of damages”. Here, the trial judge correctly identified the applicable legal principles.

The Court did not accept the A’s submission that the trial judge erred by improperly assessing the A’s damages in 2018, with the benefit of hindsight that there had been no further washouts of their property, rather than from the perspective of 2008, when it was reasonably foreseeable based on their engineer’s report that there might be further washouts. This was only one factor, among several, for the trial judge’s conclusion that the A’s were entitled to damages for only a short-term interruption of use of their cottage.

The Court also disagreed with the M’s submission that they could not be liable for damage to the outhouse because H. M. and L .M. owned the land on which the outhouse was situated. The trial judge correctly concluded that the outhouse was a chattel that the A’s owned, rather than a fixture forming part of the land, because it had been moved on occasion and was purchased with the A’s cottage. Having correctly identified the applicable legal principles, the trial judge’s decision to award only nominal damages was entitled to deference.

(4) No. Appellate deference is owed to a trial judge’s decision to award punitive damages, provided that they are a rational response to the facts. The Court of Appeal was of the view that there was a rational basis for the trial judge’s decision to award nominal punitive damages given his findings that H. M. exacerbated the conflict between the parties, exposed the outhouse to further damage by removing the cedars, encouraged vandalism, and engaged in intimidation. It was open to the trial judge to conclude that punitive damages in this amount were rationally required.

However, the court deferred to another day whether a court is entitled to rely on spoliation of evidence as providing a basis for awarding punitive damages. Ontario jurisprudence has yet to resolve definitively whether spoliation is a cause action.


Noguera v. Muskoka Condominium Corporation No. 22, 2020 ONCA 46

[MacPherson, Pepall and Lauwers JJ.A]

Counsel:

Erik Savas, for the appellant
Megan Mackey, for the respondents

Keywords: Real Property, Condominiums, Oppression, Condominium Act, 1998, SO 1998, c 19, s 32, s40, s 98, s 135, BCE Inc v 1976 Debentureholders, 2008 SCC 69

facts:

The respondents purchased a Unit 210 in Muskoka Condominium Corporation No. 22 (the “Condominium”) in May 2014. In February 2016, Unit 211 became available for purchase. The respondents wished to buy Unit 211 and combine it with Unit 210 to make one larger unit. The respondent, Mr. N, was a board member and was present during the Condominium board meeting where the proposal to combine the units was approved with the following conditions:

(1) that the unit owner pay all the costs;

(2) that the alteration not affect the use and enjoyment of other unit owners;

(3) that the alteration not affect the symmetry of the building;

(4) that the alteration not affect the Condominium’s budget;

(5) that all the necessary engineering and town approval be given before the work commenced;

(6) that the wall be returned to its existing state if the unit owner (Mr. N) was to sell one of the units and at no cost to the Condominium; and,

(7) that the two units “could never be sold as one unit.

Based on the board’s approval, the respondents bought the adjoining unit. Renovations began in the summer of 2017 and were completed in early 2018.

Section 98 of the Condominium Act required the Condominium to enter into and register on the title to the units an agreement with the respondents before they made “an addition, alteration or improvement to the common elements.” Consistent with its long-standing past practice, the Condominium neglected to do so. When the membership of the board of directors changed, the new board sought to unravel all that had gone before regarding the two units owned by the respondents, largely on the basis that there was no s 98 agreement covering the alterations.

The board decided to validate retrospectively the changes made by unit owners by what was termed “blanket” s 98 agreements. The respondents agreed to sign a s 98 agreement and were told that others who had made structural changes would sign one too. The s 98 agreements provided to the affected unit owners were identical, except for the one provided to the respondents. Their s 98 agreement contained the following additional language in clause 5:

The Improvements shall be removed by the Unit Owner, at the Unit Owner’s sole expense, before the Unit is sold. Specifically, the Unit shall be restored to the condition before the Improvements were made, including but not limited to the reinstallation of the common element demising wall within the Unit and any changes that were made by the Unit Owner related thereto.

The respondents brought an application under s 135 of the Condominium Act for an oppression remedy on the basis that they were “targeted” after their relationship with members of the new board began to break down. The respondents asked for the following relief:

(1) that the Condominium be foreclosed from re-opening the approval process as it has requested in its cross-application;

(2) that the operative s 98 agreement be that proposed by the applicants;

(3) that the applicants may use the lakeside path again; and,

(4) that the applicants receive damages for their loss of enjoyment of their property.

The application judge dismissed the Condominium’s cross-application, and granted the respondents’ oppression application, in part, on the following terms:

(1) This Court Declares that on March 25, 2016 the board of directors of the Respondent approved changes to the demising wall between suite 210 and 211 to create two openings, one on the main floor and one of the second floor.

(2) This Court Orders that the parties are required to execute the Respondent’s requested form of section 98 agreement. The following terms must be added as clause no. 5:

The changes to the demising wall should be removed by the Unit Owner, at the Unit Owner’s sole expense, before the unit is sold. Specifically, the Unit shall be restored to the condition before the demising wall was altered.

(3) This Court orders that the Respondent shall pay MN and VN $10,000 in damages for oppression.

(4) This Court orders that MN and VN may resume use of the lake-front path.

The Condominium appealed.

issues:

(1) Did the application judge err in her application of the law of oppression?

(2) Was the board meeting at which the alterations were approved invalid under s 40 of the Condominium Act?

holding:

Appeal dismissed.

reasoning:

(1) No. The application judge correctly concluded, on the evidence, that the requirements of the oppression remedy under s 135 had been met. The test for oppression under s 135 mirrors that for oppression in corporate law generally as laid down in BCE Inc v 1976 Debentureholders: (i) the claimant must establish that there has been a breach of reasonable expectations and, (ii) the conduct must be oppressive, unfairly prejudicial or unfairly disregard the interests of the claimant. The Court held that the application judge’s decision that the Condominium oppressed the respondents was available to her on the basis of the evidence before her, specifically “that the Condominium wrongly disparaged the applicants, especially [Mr. N], wrongly excluded them from use of common elements, specifically the path, and wrongly fostered an atmosphere that made them uncomfortable” and that the particular form of the s 98 agreement to which the Condominium would accede was “abusive and unfair, and prejudicial” to the respondents.

(2) No. The Court agreed with the application judge that Mr. N was not in a conflict of interest and therefore the required quorum of board members at the proposal approval meeting was satisfied. Section 40(6) of the Condominium Act prohibits a director from being counted in the quorum if the director has a “material” interest in the discussion or approval. The application judge viewed materiality in functional terms and an alteration to an internal wall to join the two units was a “minor alteration”. The Court agreed with the application judge’s definition of “material” and application.

(3) The Condominium renewed before the Court its argument that a court has no business making an order prescribing the terms of the s 98 agreement. The parties should be left to negotiate the terms of the agreement with the Condominium retaining its complete discretion. The Court rejected this argument because the s 98 agreement prepared for the respondents was onerous and different from the s 98 agreements prepared for all other owners. The Court held that the Condominium’s real interests were entirely protected by the s 98 agreement ordered by the application judge, which simply incorporated the conditions imposed when the Board originally approved the respondents’ proposal.


Boodoo v. Merrick, 2020 ONCA 52

[Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. (ad hoc)]

Counsel:

Marc Whiteley and Monty Dhaliwal, for the appellants S.B. and K.R.
Douglas Christie, for the respondent, L.M.

Keywords: Civil Procedure, Service of Documents, Motions, Chiarelli v. Wiens, (2000), 46 O.R. (3d) 780

facts:

Both parties brought motions in an action which ultimately turned on whether LM had been prejudiced by late service of a Statement of Claim. The motion judge treated the two motions separately, finding that the plaintiffs on their motion had failed to show that LM was not prejudiced by the late service of the Statement of Claim, and that LM on his motion had failed to show that he was prejudiced by the late service of the claim.

issues:

(1) Did the motion judge err in treating the motions separately?

holding:

Appeal allowed.

reasoning:

(1) Yes. The two results are irreconcilable. The motion judge should have considered the entirety of the material filed on the motions in light of the legal principles in Chiarelli v. Wiens, (2000), 46 O.R. (3d) 780: the defendant failed to show any prejudice flowing from the late service even when specifically asked for details of the prejudice he alleged he suffered. Moreover, the plaintiffs’ motion should have been allowed on its merits. The plaintiffs had no difficulty serving the co-defendant and son of LM. However, the plaintiff’s process server conducted various searches and despite repeated attempts, could not locate LM who was described as “slippery” and incredibly “evasive.”


Hydro Hawkesbury v. ABB Inc., 2020 ONCA 53

[Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. (ad hoc)]

Counsel:

Tara L. Lemke, for the appellant
Jacqueline Horvat and Alexandria Chun, for the respondent

Keywords: Contracts, Arbitration Agreements, Exclusion Clauses, Consequential Damages, Civil Procedure, Crossclaims, Tilden Rent-a-Car Co. v. Clendenning (1978), 18 OR (2d) 601 (CA)

facts:

This is an appeal from the order of the motion judge staying the crossclaims between the appellant, Pioneer Transformers Ltd. (“PT”), and its co-defendant, the respondent ABB Inc. (“ABB”).

In its crossclaim against ABB, PT sought consequential damages arising from a defective tap changer. The tap changer was manufactured and supplied by ABB and included in a transformer which PT ultimately sold to Hydro Hawkesbury, the plaintiff in the underlying action.

After granting Hydro Hawkesbury’s motion for summary judgment against PT, the motion judge stayed the crossclaims between PT and ABB because he found that the standard terms and conditions (“Orgalime”) applied to ABB’s supply of the tap changer. Those standard terms included a clause which required disputes between PT and ABB to be resolved under the Rules of Arbitration of the International Chamber of Commerce and substantive law. The terms also excluded liability for consequential loss. PT appealed. Relying on Tilden Rent-a-Car Co. v. Clendenning (1978), 18 OR (2d) 601 (CA) (“Tilden Rent-a-Car”), PT argued that ABB was required to bring the clauses in Orgalime to its attention.

issues:

(1) Did the motion judge err in concluding that Orgalime applied?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court held that there was no basis to interfere with the motion judge’s decision. Unlike Tilden Rent-a-Car, this was not a case where the signing party could not reasonably have been expected to read the contract before signing it. As was considered by the motion judge, PT was a fairly sophisticated corporate consumer. Moreover, the Orgalime terms and conditions were readily available, and were specifically referred to in two documents which created the contractual relationship between PT and ABB. In other words, PT, as a fairly sophisticated corporate consumer doing business with a foreign supplier, would reasonably be expected to have reviewed the terms of both documents and would expect the type of clauses contained in Orgalime.

Since Orgalime applied, the Court held that arbitration was the appropriate resolution mechanism and thus the crossclaims were properly stayed by the motion judge.


Royal Canadian Mortgage Investment Corporation v. 1835923 Ontario Ltd., 2020 ONCA 55

[Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. (ad hoc)]

Counsel:

No one appearing for the appellants
George Corsianos, for the respondent

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals in Writing

facts:

The appellant 1835923 Ontario Ltd. (“183”) arranged a second mortgage on the property with the respondent. The other appellant, Mrs. K, guaranteed this mortgage. The first mortgage on the property had matured before 183 arranged the second mortgage and had not been paid. The respondent’s evidence on the summary judgment motion was that the respondent was unaware that the first mortgage had matured and was in default when 183 requested the second mortgage. Default under a prior charge constituted a default under the second mortgage.

The respondent paid out the first mortgage and commenced power of sale proceedings as well as brought an action for damages against the appellants. The motion judge ordered the appellants pay the respondent $626,719.59 on account of principal money, fees, and interest to October 30, 2018.

The appellants appealed and on January 13, 2020 asked for an adjournment of the appeal. The Court denied the appellant’s request and ordered that if on January 16, 2020 the appellants did not appear, the Court would hear the appeal relying on the written materials that had been filed by the parties. To ensure that the respondent was not perceived as having an advantage over the appellants, counsel for the respondent would not be provided with an opportunity to make oral submissions.

On January 16, 2020, no one attended for the appellants and so the Court considered the merits of the appeal relying on the written materials filed by the parties without oral submissions.

issues:

Was the second mortgage void ab initio because:

(1) the respondent acted in a predatory manner by entering into the second mortgage knowing that the property was already under power of sale proceedings initiated by the first mortgagee and planning to take possession of the property?

(2)  the respondent failed to conduct due diligence and confirm that the first mortgage was in good standing before permitting the appellants to enter into the second mortgage?

(3) the appellants were in default of the second mortgage as soon as it was granted because the first mortgage had matured before the second mortgage was issued?

holding:

Appeal dismissed.

reasoning:

The Court held there was no merit to any of the appellants’ written arguments. It was the appellants’ responsibility and not the respondent’s obligation to ensure that the first mortgage had been renewed and was in good standing.


Lewis v. Lewis, 2020 ONCA 56

[Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. (ad hoc)]

Counsel:

Patrick J. Kraemer, for the appellants
Carol Craig, for the respondents

Keywords: Wills and Estates, Substitute Decisions, Powers of Attorney, Attorneys for Property, Passing of Accounts, Substitute Decisions Act, 1992, S.O. 1992, c. 30, Groh v. Steele, 2017 ONSC 3625, Dzelme v. Dzelme, 2018 ONCA 1018

facts:

On April 16, 2013, E and M.L. appointed the respondents, two of their six adult children, as their attorneys for property. The appellants – the remaining four children – appeal the order of the application judge, dismissing their application under ss. 42(1) and (4) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, (the “SDA”) for leave to require the respondents to pass their accounts. The court was advised that E and M.L died about seven weeks apart, shortly after the application was heard.

The appellants had also unsuccessfully challenged M.L.’s appointment of the respondents as her attorneys for personal care and property. Their further appeal was also dismissed. The court dismissed this appeal, for reasons to follow. This summary is of those reasons.

issues:

(1) Did the application judge err in finding that there was a lack of evidence relating to misfeasance or wrongdoing?

(2) Did the application judge err in principle in the exercise of his discretion by focusing on whether there is a concern about misfeasance or wrongdoing?

(3) Did the application judge improperly consider that M.L. had capacity when she appointed the respondents as her attorney for property?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court agreed with the application judge’s finding that the “record falls far short and lacks evidentiary stamina to suggest that there is any direct allegation of misfeasance or wrongdoing”.

(2) No. The Court agreed with the appellants that an attorney can be ordered to pass accounts, and accordingly leave can be granted under s. 42(4), in the absence of significant concerns about misfeasance or wrongdoing.

(3) No. The Court found that the judge did not consider that the fact that M.L. had capacity when she appointed the respondents as her attorneys for property was a reason to deny the appellants leave under s. 42(4). To the contrary, he specifically stated that whether she had capacity was not germane to the application.


Mohammad v. The Manufacturers Life Insurance Company, 2020 ONCA 57

[Simmons, Lauwers and Nordheimer JJ.A.]

Counsel:

Gordon Jermane, for the appellant
Michael K. Walter, for the respondent

Keywords: Contracts, Life Insurance, Rescission, Material Misrepresentation, Summary Judgment, Insurance Act, RSO 1990, c I8 s 184(2), Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, Carter v. Boehm (1766), 3 Burr. 1905 (Eng. K.B.)

facts:

The Respondent’s husband (the “deceased”) completed an application for life insurance with a predecessor to the appellant. The Respondent was the sole beneficiary under the policy. Unbeknownst to the Appellant, the deceased had been convicted in Greece many years earlier of various offences, including manslaughter. At the time, the deceased was a member of a terrorist group (“PFLP”). Not long after he was convicted, the deceased was released as the result of a hostage negotiation. Subsequently, the deceased came to Canada fraudulently using a false identity. That is also how he obtained his social insurance number. Eventually, the deceased’s past activities were discovered by Canadian authorities. In 2013, the deceased was deported to Lebanon where he died of lung cancer.

None of the information respecting his involvement with the PFLP was provided by the deceased when he applied for the life insurance policy.

The insurer refused to pay out under the policy, and the Respondent sued and brought a motion for summary judgment. The insurer brought a cross-motion to dismiss the action on the basis that the deceased had made material misrepresentations which vitiated the policy. The motion judge found that, in providing his social insurance number, the deceased did not misrepresent his immigration status. In her reasons, the motion judge found that the appellant’s failure to ask any questions relating to immigration status or criminal history “signaled that these issues were not material”.

issues:

(1) Did the motion judge err in her decision to grant the summary judgment in favour of the Respondent?

holding:

Appeal allowed.

reasoning:

(1) Yes. The motion judge made a palpable and overriding error in finding that the deceased’s failure to reveal his past activities did not constitute a failure to reveal material facts that vitiated the policy. The motion judge erred in her reliance on Sagl v. Chubb Insurance Company of Canada. In that case, the insurer made no inquiries about information related to the ownership of the property, which it knew or should have known existed, such that the trial judge was entitled to infer that this information was not material. In this case, there was no suggestion that the appellant ought to have known that the information related to the deceased’s past existed, and therefore cannot be faulted for not having inquired into it.

The motion judge also erred in relying on the absence of questions in the application form as disposing of the deceased’s obligation to reveal material facts. It is a principle of long standing that an applicant for insurance has an obligation to reveal to the insurer any information that is material to the application.

The deceased knew that his past activities were relevant to his application for life insurance. Shortly after he applied for the life insurance, the deceased filed an affidavit in his immigration proceedings in which he said that his life would be in danger if he were to be deported to Israel. The court concluded that the deceased intentionally withheld his past from the appellant, and that this withholding of information constituted fraud within section 184(2) of the Insurance Act.

In the result, summary judgment in favour of the Respondent was set aside and substituted with summary judgment dismissing the action.


1552443 Ontario Inc. v. Nipissing Vacant Land Condominium Corporation No. 41, 2020 ONCA 74

[Pepall, Pardu and Paciocco JJ.A.]

Counsel:

Michael Spears, for the appellant
Megan Mackey, for the respondent

Keywords: Real Property, Condominiums, Special Assessments

facts:

The appellant was the developer of the condominium, consisting of 32 vacant lots. It was obliged to turn over control of the Corporation to the owners after it ceased to be the owner of the majority of the units in early 2012. It failed to do so until forced by legal action in December 2017. Although the other owners had been paying common expense charges for years, there was only $56.48 in the operating account and $11.61 in the reserve fund when they took over on December 4, 2017.

A reserve fund study prepared by an engineer in 2017, before the change in control of the Corporation, indicated that the reserve fund should have had a balance of $36,610.

The appellant had been taking money from the Corporation’s accounts for many years and paying it to his own corporation. The appellant continues to be in default of payment of the monthly common expense charges.

When the new board assumed control of the Corporation it had an immediate problem. It had bills to pay for ongoing expenses such as electricity and snow removal and no money to pay those expenses. It levied a special assessment in the total amount of $147,000 against all 32 units on January 9, 2018.

The appellant refuses to pay its share of that special assessment, as well as ongoing common expenses. It now owes over $118,000 of which approximately one third represents its share of the special assessment.

Nipissing issued notices of sale on May 10, 2019, which the appellant unsuccessfully contested. The appellant appeals that dismissal.

issues:

(1) Did the application judge err in holding that the Corporation adopted a budget during the relevant time?

(2) Did the application judge err in holding that the respondent had set out the reasons for the special assessment?

(3) Did the application judge err in holding that the Corporation did not misrepresent the use of special assessment funds?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court found it was reasonable for the application judge to conclude that the Corporation had adopted a budget for the relevant time by adopting the budget that the appellant had implemented earlier.

(2) No. The application judge reasonably concluded that the statement the Corporation made that the bank accounts were close to empty and therefore the special assessment was required to pay ongoing operating expenses was sufficient to comply with By-law 10.3 that required the notice to include a statement “setting out the reasons for the extraordinary assessment.”

(3) No. The application judge reasonably accepted the Corporation’s argument that it could not replenish the reserve fund until the appellant paid his approximate $40,000 of the special assessment.


Aylward v. Rebuild Response Group Inc., 2020 ONCA 62

[Lauwers, Miller and Fairburn JJ.A.]

Counsel:

Jonathan Mesiano-Crookston, for the appellant
John Mastorakos, for the respondents

Keywords: Contracts, Construction, Deposits, Relief from Forfeiture, Courts of Justice Act, RSO 1990, c C43, s 98, Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282

facts:

The appellant cancelled a contract she had entered into with the respondents for the building of a new house because she was unable to agree with the respondents on modifications to the contract which would reduce the price of the new home. She sued the respondents for the return of the 25% deposit she put down on the house.

issues:

(1) Did the trial judge err in finding that the money paid upfront by the appellant was a deposit?

(2) Did the trial judge err in failing to grant relief from forfeiture under s. 98 of the Courts of Justice Act?

holding:

Appeal dismissed.

reasoning:

(1) No. The law relating to deposits was set out generally in Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282: a deposit is generally forfeited by a buyer who repudiates the contract, and this is not dependent on proof of damages by the other party. If the contract is performed, the deposit is applied to the purchase price. The appellant argued due to a separate agreement, the deposit she paid was not a true deposit and the trial judge made no error in rejecting her argument.

(2) No. The trial judge found that the pleading was not sufficiently specific to find that the plaintiff had pleaded relief from forfeiture but went on to analyze the claim anyway. The trial judge rejected the claim on the basis that the forfeited sum was not out of all proportion to the damages suffered, and it would not be unconscionable for the respondents to retain the deposit. This was largely a factual analysis and the trial judge made no palpable or overriding error. There were no factors to support a finding of unconscionability.


Donaldson v. Braybrook, 2020 ONCA 66

[Simmons, Lauwers and Nordheimer JJ.A.]

Counsel:

David N. Delagran, for the appellants
Nathaniel Read-Ellis, for the respondent

Keywords: Wills and Estates, Property Law, Real Property, Joint Tenancy, Life Interests, , Unjust Enrichment, Presumption of Resulting Trust, Pecore v. Pecore, 2007 SCC 17, Pecore v. Pecore (2005), 17 R.F.L. (6th) 261 (Ont. C.A.)

facts:

This is an appeal from the summary judgment granted by the motion judge declaring that the respondent, W, had a life interest, with exclusive possession of a family cottage (“Cottage”), which was previously owned by M, the mother of W and the appellants, S and T.

During M’s lifetime, W, S, T and their late brother, B, were given generous access to the Cottage. In fact, M lived year-round in an apartment over the garage of the Cottage, so that the main area could be used by her children. Each spring, M created a schedule allocating specific weeks to those of her children who wished to make use of the Cottage. There was no dispute that the system of allocation was always fair.

On March 13, 1995, M signed a transfer of the Cottage from herself alone to herself, S and T “As joint tenants and not as tenants in common as to the remainder in fee”, with “additional transferees” listed as “[W] – As to a life estate”, and B, also “As to a life estate” (the “1995 transfer”). That same day, M also executed a new Will, which provided that the entire residue of her estate was to be held in trust for five years to pay the expenses of the Cottage, following which the residue was to be divided equally among her four children. M did not tell any of her children that she was making these arrangements.

In 1997, M executed a new Will, which extended the provision for the payment of expenses of the Cottage from the residue of her estate to a ten-year period. In 2004, M executed a final Will, which removed the provision that created the trust altogether.

In or about September 2000, M told S that she had transferred the Cottage to S, T, and herself as joint tenants. M did not, however, tell S about the life interests to W and B.

Shortly after M passed away on February 24, 2007, S and T severed the joint tenancy on the Cottage such that they each owned 50% as tenants in common. Although S and T assumed responsibility for the expenses related to the Cottage, S, T, and W all continued to make use of the Cottage in the same manner as they had before their mother died. M never told W about the transfer, nor did S or T. W first learned that she was on title as an “additional transferee”, “[as] to a life estate” five years after her mother died.

When S and T decided to sell the Cottage in 2013, they needed W and B to release their legal life interests that were registered on title. B agreed to assign his life interest to S and T. W, however, did not agree. W took the position that she was an equal owner and ultimately, commenced the underlying action.

In granting summary judgment to W, the motion judge held that W had a life interest in the Cottage with a right to exclusive use. In making his determination, the motion judge found that the evidence as a whole demonstrated M’s intention to gift to W a life interest in the Cottage. He rejected the appellants’ submission that the use of the Cottage after the 1995 transfer but before M’s death negated this life tenancy. Instead, he found that the appellants, S and T, had been unjustly enriched through their use of the Cottage since M’s death. However, the motion judge made no corresponding award in this regard. S and T appealed on the basis that the motion judge erred in both fact and law.

issues:

(1) Did the motion judge err in concluding that W had an exclusive life interest in the Cottage?

holding:

Appeal allowed.

reasoning:

(1) Yes. The Court held that the motion judge erred in both law and fact in concluding that W had an exclusive life interest in the Cottage. First, the Court found that the wording on the registered transfer on title was ambiguous. In this regard, the Court noted that the registered transfer listed M, S and T as transferees without limiting their interest in any way. It also stated that they were to take title “[a]s joint tenants and not as tenants in common as to the remainder in fee” (emphasis added), which suggested that they held interests beyond the remainder in fee.

In finding that the wording of the 1995 transfer was ambiguous, the Court held that it was appropriate to look to the evidence of M’s actual intention. After analyzing the evidence as a whole, the Court held that the only reasonable conclusion was that M intended for all of her children to continue to enjoy shared use of the Cottage after her death in the manner that they had during her lifetime; and that M intended for S and T alone to enjoy ownership interests beyond the shared right to use during their lifetimes. Based on the history, the Court found that there was nothing to suggest that M intended her transfer of title in the Cottage to carry with it any exclusivity rights. M’s children had all enjoyed the Cottage throughout their lives. Similarly, there was no evidence that M suddenly intended that W would be the only child entitled to use the Cottage. The Court found that such a conclusion was inconsistent with the concurrent life interest that was given to B. More significantly, if the motion judge’s conclusion was correct, M herself would have had no right to make use of the Cottage after making the transfer. The Court held that this reality, on its own, should have caused the motion judge to question his conclusion.

Based on the foregoing, the Court held that it was unnecessary to consider whether the motion judge erred in concluding that the presumption of resulting trust had been rebutted. As the Court explained in its decision in Pecore v. Pecore (2005), 17 R.F.L. (6th) 261 (Ont. C.A.), aff’d Pecore v. Pecore, 2007 SCC 17, the presumption of resulting trust only applies if the court is unable to determine the intent of the transferor. Since the evidence of actual intention was clear in the instant case, the presumption was irrelevant.

In light of the Court’s conclusion, the Court further found that it was unnecessary to determine whether the notes of M’s solicitor were admissible in evidence as business records.

Since there were no other issues raised in the pleadings that fell to be determined, the Court rejected W’s submission that the matter should be returned to the Superior Court of Justice to proceed to trial if the appeal were to be allowed. The Court thus set aside the motion judge’s order and, in its place, granted an order that W’s interest in the Cottage was limited to a life-time license to occupy the Cottage on a non-exclusive basis, consistent with the manner in which the Cottage was used before M’s death.

S and T were granted their costs on the appeal, and the costs of the motion below.


Metropolitan Toronto Condominium Corporation No. 1100 v. A. & G. Shanks Plumbing & Heating Limited, 2020 ONCA 67

[Strathy C.J.O., MacPherson and Jamal JJ.A.]

Counsel:

C. Kirk Boggs and Jennifer L. Hunter, for the appellants Metropolitan Toronto Condominium Corporation No. 1100 and D.B.F.
Christopher I.R. Morrison, Joel Cormier, and Peter K. Boeckle, for the respondent

Keywords: Torts, Negligence, Standard of Care, Evidence, Burden of Proof, Expert Evidence, Circumstantial Evidence, Causation, Fontaine v British Columbia (Official Administrator), [1998] 1 SCR 424, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656

facts:

The appellants appeal the dismissal of their actions for damages arising out of a fire that destroyed an historic mansion, which was part of a condominium development in Toronto.

The fire was detected shortly after a plumber, employed by the respondent, had repaired a leaking pipe in the basement ceiling, using a blowtorch and solder. The fire originated in the ceiling, near the location of the plumber’s work.

At the commencement of trial, counsel for the appellants stated that he did not propose to call expert evidence on the standard of care, because the plumber’s conduct was “egregious” and obviously fell below the standard. This position was taken in reference to the Court’s decision in 495793 Ontario Ltd (Central Auto Parts) v Barclay, which holds that expert evidence is not necessary “where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care.”

The respondent did not adduce expert evidence on either the standard of care or causation. However, the plumber who performed the work testified about the precautions he had taken and the trial judge found the plumber’s evidence was both credible and reliable.

On the issue of standard of care, the trial judge found that the Barclay exception was not applicable: soldering is a technical matter requiring expert evidence of the standard of care and there was nothing egregious about the plumber’s conduct. He concluded: “In my view it was incumbent upon the plaintiffs to lead expert evidence to establish the appropriate standard of care in order for the court to find that it had been breached. They did not do so and because of this their claim must be dismissed.

The trial judge also addressed causation, finding that, while the evidence was “somewhat problematic”, as the plumber was the only one working in the vicinity of the location where the fire started, “there was no evidence that anything he did caused the fire.”

issues:

(1) Did the trial judge erred by failing to draw an inference of a breach of the standard of care based on the circumstantial evidence?

(2) Did the trial judge erred by failing to draw an inference of causation in light of the circumstantial evidence.

holding:

Appeal dismissed.

reasoning:

(1) No. As the appellants called no expert evidence to show that the plumber’s precautions fell below the applicable standard of care, the Court held that the trial judge was entitled to conclude that, considering all the direct and circumstantial evidence, including the respondent’s evidence, the appellants had failed to discharge their burden of proving a breach of the standard of care.

(2) As the trial judge did not err on the standard of care issue, the Court felt no need to address the causation analysis.


York Region Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., 2020 ONCA 63

[MacPherson, Rouleau, Roberts, Nordheimer and Harvison Young JJ.A.]

Counsel:

Elizabeth Bowker and Christian Breukelman, for the appellant/respondent by way of cross-appeal
R. Leigh Youd, Adam Wygodny, Tim Gleason and Mathieu Bélanger, for the respondent/appellant by way of cross-appeal

Keywords: Real Property, Condominiums, Civil Procedure, Originating Process, Notice, Stare Decisis, Statutory Interpretation, Condominium Act, 1998, S.O. 1998, c. 19, Rules of Civil Procedure, Rule 14, York Condominium Corp. No. 46 v. Medhurst, Hogg & Associates Ltd. et al. (1983), 41 O.R. (2d) 800 (C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344, David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161 (C.A.), leave to appeal ref’d, [2005] S.C.C.A. No. 388-95

facts:

This matter arose out of alleged defects in the construction of a large condominium in Thornhill, Ontario. The respondent condominium corporation brought an action against many persons, including the appellant, 360 Community Management Ltd. (“360”). 360 had been the building’s property manager. It brought a motion for summary judgment, arguing that because the condominium corporation had failed to comply with the notice provision in s. 23(2) of the Condominium Act, 1998, S.O. 1998, c. 19, the action should be dismissed as a nullity. The motion judge found that the notice provisions were inapplicable or, if they were applicable, they had been satisfied. He dismissed the summary judgment motion.

issues:

(1) Did the motion judge err in holding that non-compliance with s. 23(2) renders an action a nullity?

(2) Did the motion judge err in holding that an action is “commenced” for the purposes of s. 23(2) by the issuance of the statement of claim, rather than the notice of action?

(3) Did the motion judge err in finding that the notice provision in s. 23(2) of the Act did not apply to this action?

holding:

Appeal dismissed.

reasoning:

(1) Yes. The court concluded that this action is not a nullity.

The condominium corporation did not provide the unit owners with sufficient notice before the notice of action was issued on March 11, 2016. It did, however, provide the owners with detailed notice, including a draft statement of claim, shortly thereafter, and before the statement of claim was filed on April 8, 2016. The parties disagreed, in these circumstances, about whether notice was required, whether it was given, and the consequence of non-compliance. The latter issue is the central issue in this case: does a condominium corporation’s failure to comply with the notice provision in s. 23(2) render the action a nullity?

According to a strict reading of the Court’s decision in York Condominium Corp. No. 46 v. Medhurst, Hogg & Associates Ltd. et al. (1983), 41 O.R. (2d) 800 (C.A.), the answer to this question is “yes”. This five-member panel of the Court concluded, however, that the Court’s decision in Medhurst has been attenuated by subsequent Supreme Court of Canada jurisprudence. It has also generated unnecessarily harsh effects which are inconsistent with the purpose of the notice provision pursuant to the principles of modern statutory interpretation. Accordingly, the Court overruled Medhurst and held that strict non-compliance with the notice provision did not render an action a nullity.

(2) Yes. In the court’s view, the motion judge erred in his conclusion that this action was only “commenced” for the purposes of s. 23 when the statement of claim was filed. Rather, as is clear from Rule 14 of the Rules of Civil Procedure, the action was commenced when the notice of action was issued.

(3) The court declined to address the third issue.


SHORT CIVIL DECISIONS

Gilby v. Rowbotham, 2020 ONCA 51

[Simmons, Lauwers and Nordheimer JJ.A.]

Counsel:

P.R., acting in person
Melinda Vine, for the respondent

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Summary Judgment


CRIMINAL DECISIONS

R. v. B.D., 2020 ONCA 50 (Publication Ban)

[Gillese, Rouleau and Fairburn JJ.A.]

Counsel:

J. Scott Cowan, for the appellant
Charmaine Wong, for the respondent

Keywords: Criminal Law, Sexual Assault, Right to Counsel, Canadian Charter of Rights and Freedoms, s. 10(b)

R. v. G.D., 2020 ONCA 48 (Publication Ban)

[Benotto, Paciocco and Thorburn JJ.A.]

Counsel:

G.D., acting in person
Brian Snell, appearing as duty counsel
Andrew Hotke, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference, R. v. W.(D.), [1991] 1 S.C.R. 742

R. v. S.G., 2020 ONCA 42

[Pardu, Brown and Huscroft JJ.A]

Counsel:

Daniel Santoro and Nicola Fernandes, for the appellant
Jeremy Streeter, for the respondent

Keywords: Criminal Law, Drug Offences, Right to Counsel, Canadian Charter of Rights and Freedoms, s. 10(b), 24(2), R. v. G.T.D., 2018 SCC 7, R. v. Plaha (2004), 188 C.C.C. (3d) 289 (ONCA), R. v. Grant, 2009 SCC 32

R. v. A.V., 2020 ONCA 58 (Publication Ban)

[Pardu, Brown and Huscroft JJ.A.]

Counsel:

Anthony Moustacalis, for the appellant
Adam Wheeler, for the respondent

Keywords: Criminal Law, Sexual Interference, Sexual Exploitation, Sexual Assault, Evidence, Admissibility, Prior Consistent Statements R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Dinardo, 2008 SCC 24

R. v. C.G., 2020 ONCA 60

[Benotto, Paciocco and Thorburn JJ.A.]

Counsel:

Ian M. Carter, for the appellant
Gavin MacDonald, for the respondent

Keywords: Criminal Law, Criminal Negligence Causing Death, Criminal Negligence Causing Bodily Harm, Dangerous Driving, Defences, Automatism, R. v. Hundal, [1993] 1 S.C.R. 867, R. v. Beatty, 2008 SCC 5, R. v. Creighton, [1993] 3 S.C.R. 3

R. v. R.T., 2020 ONCA 47

[Hoy A.C.J.O., Doherty and Zarnett JJ.A.]

Counsel:

Adam Little, for the appellant
Davin Garg, for the respondent

Keywords: Criminal Law, Impaired Driving, Refusal to Comply, Canadian Charter of Rights and Freedom, s. 10(b), Criminal Code, s. 253(1)(a), 254(3.1), 254(3.4)(a), 254(5), R. v. Sinclair, 2010 SCC 35

R. v. H.A., 2020 ONCA 65

[Watt, Tulloch and Trotter JJ.A.]

Counsel:

Paul Calarco, for the applicant/appellant
Philip Perlmutter, for the respondent

Keywords: Criminal Law, Motion for Directions, Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a)

R. v. H.H., 2020 ONCA 59 (Publication Ban)

[Pardu, Roberts and Thorburn JJ.A.]

Counsel:

Jeff Carolin, for the appellant
Jennifer Trehearne, for the respondent

Keywords: Criminal Law, Criminal Harassment, Sexual Assault, Sexual Interference, Evidence, Admissibility, Criminal Code, s. 686(1)(a)(i), R. v. Savoury (2015), 200 C.C.C. (3d) 94 (ONCA), R. v. Jack, 2013 ONCA 80

R. v. H.L., 2020 ONCA 70

[Watt, Tulloch and Trotter JJ.A.]

Counsel:

Darren Sederoff and Robert Cutruzzola, for the appellants
Kevin Ranchand, for the respondents

Keywords: Criminal Law, Sentencing, R. v. Lacasse, 2015 SCC 64

R. v. M.S., 2020 ONCA 61 (Publication Ban)

[Pardu, Brown and Huscroft JJ.A.]

Counsel:

Andrea Vanderheyden, for the appellant
Jeremy Tatum, for the respondent

Keywords: Criminal Law, Trafficking in Persons, Theft, Jury Charge, Sentencing, Criminal Code, s. 279.01(1), 279.04(1), 601(3)(b), R. v. Gallone, 2019 ONCA 663

R. v. M.Y., 2020 ONCA 69

[Watt, Tulloch and Trotter JJ.A.]

Counsel:

Jessica Zita, for the appellant
Nicolas de Montigny, for the respondent

Keywords: Criminal Law, Robbery, Unlawful Confinement, Breach of Recognizance, Kienapple v. R., [1975] 1 S.C.R. 729

R. v. D.L., 2020 ONCA 77 (Publication Ban)

[Watt, Tulloch and Trotter JJ.A.]

Counsel:

Mark Halfyard, for the appellant
Elizabeth Teed, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference

R. v. P.J., 2020 ONCA 73

[Watt, Miller and Fairburn JJ.A.]

Counsel:

Najma Jamaldin, for the appellant
John A. Neander and Melissa Adams, for the respondent

Keywords: Criminal Law, Second Degree Murder, Self-Defence, Evidence, Admissibility, Youth Offenders, Criminal Code, s. 231(2), 235(5)(e), 745.1(c), Youth Criminal Justice Act, S.C. 2002, c. 1, s. 146(2), R. v. J.(J.T.), [1990] 2 S.C.R. 755, R. v. Storrey, [1990] 1 S.C.R. 241, R. v. Grant, 2009 SCC 32

R. v. M.R.M., 2020 ONCA 75 (Publication Ban)

[van Rensburg J.A. (Motions Judge)]

Counsel:

Ricardo Golec, for the applicant
Nicolas de Montigny, for the respondent

Keywords: Criminal Law, Incest, Bail Pending Appeal, Sentencing, Mandatory Minimum Sentence, Criminal Code, s. 679(1)(b), 679(4), R. v. Nur, 2015 SCC 15

R. v. C.M., 2020 ONCA 76 (Publication Ban)

[Watt, Tulloch and Trotter JJ.A.]

Counsel:

Walter Fox and Sayeh Hassan, for the appellant
Catherine Weiler, for the respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Credibility

R. v. R.C.M., 2020 ONCA 78 (Publication Ban)

[Watt, Tulloch and Trotter JJ.A.]

Counsel:

Peter Lindsay and Hamna Anwar, for the appellants
Vallery Bayly, for the respondent

Keywords: Criminal Law, Child Luring, Criminal Code, s. 172.1(1)(b)

R. v. D.R., 2020 ONCA 64 (Publication Ban)

[Simmons, Watt and Miller JJ.A.]

Counsel:

Megan Savard and Julia Kindrachuk, for the appellant
Christine Tier, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Evidence, Credibility, Sentencing, Criminal Code, s. 153(1), 718.1(a)


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John represents amateur sports organizations in contentious matters, and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.