COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tahmasebi, 2020 ONCA 47

DATE: 20200129

DOCKET: C65029

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

BETWEEN

Her Majesty the Queen

Respondent

and

Ramin Tahmasebi

Appellant

Adam Little, for the appellant

Davin Garg, for the respondent

Heard: November 14, 2019

On appeal from the conviction entered by Justice Peter N.
    Bourque of the Ontario Court of Justice on November 28, 2017, and from the
    sentence imposed on February 20, 2018, with reasons reported at 2017 ONCJ 816
    and 2018 ONCJ 112.

Zarnett J.A.:

I.

INTRODUCTION

[1]

The appellant was convicted of impaired driving causing bodily harm and refusal
    to comply with a demand for a urine sample. He was sentenced to 90 days in
    custody and a two year driving prohibition. A victim surcharge was also imposed.
    The appellant appeals both his conviction and sentence.

[2]

On his conviction appeal, the appellant raises two grounds. First, he
    argues that his rights under s. 10(b) of the
Canadian Charter of Rights and
    Freedom
were violated when, subsequent to his arrest on charges of dangerous
    driving and impaired driving causing bodily harm and his initial consultation
    with duty counsel, he was denied the opportunity to re-consult with a lawyer when
    demands for a drug evaluation and then a urine sample were made. Second, he
    argues that the trial judge erred in his treatment of the causation requirement
    for the offence of impaired driving causing bodily harm.

[3]

On his sentence appeal, the appellant argues that a 90 day custodial sentence
    constituted an unfit sentence. The Crown concedes that the victim surcharge that
    was imposed must be vacated.

[4]

For the reasons which follow, I would dismiss the conviction appeal,
    grant leave to appeal sentence, vacate the victim surcharge, but otherwise
    dismiss the sentence appeal.

II.

FACTUAL BACKGROUND

[5]

On April 19, 2016, the appellant drove his car onto a strangers
    driveway, stopped there, and remained in the car. The homeowner called the
    police. Two officers attended the scene, one shortly after the other  P.C.
    Finley and P.C. Paolucci.

[6]

After P.C. Finley knocked on the driver side window of the appellants
    car several times, the appellant rolled it down. He appeared to be confused and
    drowsy. P.C. Finley asked the appellant where he was going; he answered that he
    lived close by and was just taking a nap. P.C. Finley returned to his cruiser,
    which was stopped behind the appellants car, intending to turn on its video
    camera to do an impaired driving investigation. The appellants car rolled
    backwards while P.C. Finley was behind it, pinning him against his cruiser and
    injuring him.

[7]

The appellant was arrested on the scene and charged with dangerous
    driving causing bodily harm. He was placed in the back of a police cruiser and read
    his rights, including his right to counsel under s. 10(b) of the
Charter
.
    At the time, as recorded on the cruisers in-car camera, the appellant said he
    understood his rights, asked to speak to a lawyer, and explained in his own
    words the meaning of the caution he had received.

[8]

At the police station, the appellant told the Staff Sergeant that he was
    taking an opioid analgesic. The appellant was charged with impaired driving causing
    bodily harm and re-read his rights to counsel. P.C. Paolucci then called duty
    counsel and told him the appellant faced dangerous driving and impaired driving
    charges. The appellant spoke to duty counsel for approximately 8 minutes.

[9]

A police drug recognition expert (DRE Officer) spoke to the appellant,
    made a drug evaluation demand (the DRE demand), and asked the appellant if he
    understood it. The appellant responded [y]es, totally.

[10]

The DRE Officer asked the appellant if he had spoken to counsel; when
    the appellant said no, the DRE Officer said he had observed the appellant on
    the phone speaking to duty counsel. The appellant responded [o]h, that was a
    lawyer? and then confirmed speaking to him. The DRE Officer then proceeded to
    conduct the drug evaluation.

[11]

After the DRE Officer determined that the appellants ability to drive
    was impaired by drugs, he demanded that the appellant provide a urine sample.
    The DRE Officer explained the demand to the appellant and warned him that
    failure to provide a urine sample would result in another charge. The appellant
    asked to speak to a lawyer again, but the DRE Officer responded that the
    appellant had already spoken to a lawyer, who had been advised that the
    appellant was being charged with impaired driving, and he was not required to
    provide him with another consultation. The appellant ultimately refused to
    comply with the urine sample demand. He was charged with refusal to provide a
    urine sample when he knew or ought to have known that his operation of a motor vehicle
    caused an accident that resulted in bodily harm to another person.

III.

THE TRIAL JUDGES DECISION

[12]

The trial judge found that the appellants ability to operate his car
    was impaired by drug, namely a combination of cannabis and a central nervous
    system depressant. And he found that that impairment caused bodily harm, expressing
    that conclusion as follows at para. 54:

I find that the defendant was in control of the motor vehicle
    when it backed up and crushed Brian Finley. I find that some action on his part
    while he was impaired led to the vehicle moving backwards and pinning Brian
    Finley in between the defendants car and the police cruiser. To be so
    convinced, I do not need to know whether it was caused by a removal of his foot
    from the gas, or a placing of the vehicle in reverse, or any combination of his
    actions. I find he was in control of the vehicle when it moved.

[13]

The trial judge accordingly found the appellant guilty of the offence of
    impaired driving causing bodily harm under what was then s. 255(2) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, as it existed on 28 November 2017.
[1]

[14]

The trial judge dismissed the appellants argument that his s. 10(b)
    rights had been violated. He rejected the appellants evidence that he had not
    understood his rights when they were read to him. He found that the appellants
    expressed words of comprehension at the roadside were true...[and] he did
    understand his rights to counsel at all times and indeed his right to remain
    silent: at para. 60. The appellant consulted duty counsel pursuant to his
    rights. The trial judge also rejected the appellants argument that the demand
    for a urine sample gave rise to a right to a further consultation with a lawyer.

[15]

The trial judge was not convinced that the appellant knew or ought to
    have known P.C. Finley had suffered bodily harm at the time he refused to provide
    the urine sample, but convicted him of the included offence of refusal to
    comply with a demand for a urine sample under what was then s. 254(5) of the
Code
.

[16]

The trial judge imposed a 90 day global sentence: 60 days for impaired driving
    causing bodily harm and 30 days for refusal to comply with a demand for a urine
    sample. He also prohibited the appellant from driving for two years. In
    deciding that this was an appropriate sentence, the trial judge considered the
    level of the appellants impairment, which he felt had been significant, its
    role in causing bodily harm to P.C. Finley, even though it had not resulted in
    permanent injury, the fact that the appellant had a prior (albeit dated)
    conviction for refusing to provide a sample, as well as the fact that the
    appellant had otherwise led an exemplary life.

IV.

ANALYSIS

A.

THE S.
    10(B) GROUND OF APPEAL

(1)

Introduction

[17]

The appellant argues that his s. 10(b) rights were breached because he
    was denied the opportunity to re-consult counsel. While at trial the
    appellants argument was that the right to re-consult arose when the demand for
    the urine sample was made, on appeal the appellants position is that the right
    to re-consult arose when the DRE demand was made.

[18]

Although the appellants argument in this court is broader than it was
    at trial, nothing turns on the variation in his position. The conceptual
    framework underlying the appellants argument and the Crowns response
    concerning whether there was a right to re-consult counsel is essentially the
    same, regardless of whether the triggering event is viewed as the DRE demand or
    the urine sample demand.

(2)

When a s. 10(b) Right to a Second Consultation with Counsel Arises

[19]

Section 10(b) of the
Charter
states that upon arrest or
    detention, everyone has the right to retain and instruct counsel without delay
    and to be informed of that right. Its purpose is to support the detainees
    right to choose whether to cooperate with the police investigation or not, by
    giving him access to legal advice on the situation he is facing. This is
    achieved by requiring that he be informed of the right to consult counsel and,
    if he so requests, be given an opportunity to consult counsel:
R. v.
    Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 32.

[20]

While normally, s. 10(b) affords the detainee a single consultation
    with a lawyerin some circumstances, a further opportunity to consult a lawyer
    may be constitutionally required: at para. 43. A request to re-consult with
    counsel is not in itself sufficient. What is required is a change in
    circumstances that suggests that the choice faced by the accused has been
    significantly altered, requiring further advice on the new situation, in order
    to fulfill the purpose of s. 10(b) of providing the accused with legal advice
    relevant to the choice of whether to cooperate with the police investigation or
    not: at para. 65.

[21]

In
Sinclair
, the majority described three situations in which a
    second consultation with counsel would be constitutionally required. The first
    is where, after the initial consultation, non-routine procedures are proposed
    by the police (such as participating in a line-up or submitting to a polygraph)
    that do not generally fall within the expectation of the advising lawyer at the
    time of the initial consultation: at para. 50. The second is where, after an
    initial consultation tailored to the situation as the detainee and his lawyer
    then understand it based on what they were told as to the reasons for the
    detention, the investigation takes a new and more serious turn making the
    advice inadequate in light of the actual situation, or jeopardy, the detainee
    faces: at para. 51. The third is where the circumstances indicate that the
    detainee did not understand his right to counsel, or if police undermined the
    legal advice received by the detainee distorting or nullifying it: at para.
    52. In each such situation a further opportunity to consult with counsel is
    necessary to fulfill the purpose of s. 10(b): at para. 49.

[22]

As pointed out in
Sinclair
, these three situations do not
    exhaust the categories of circumstances in which a right to re-consult may
    arise. Additional categories may be developed where a change in circumstances
    makes a second consultation necessary to ensure that the purpose of s. 10(b) is
    achieved:

at paras. 49 and 53-54.

(3)

No Right to a Second Consultation with Counsel Arose In This Case

[23]

The appellant argues that this case falls within each of the three
    categories referred to in
Sinclair
, or that a new category should be
    recognized here. I disagree.

(i)

The First Category in
Sinclair
Does Not Apply

[24]

The first category in
Sinclair
does not apply because what occurred
    after the appellant was charged with impaired driving causing bodily harm and had
    his initial consultation with duty counsel  namely the DRE demand and, based
    on the result of the drug evaluation, the urine sample demand  were procedures
    that were within the expectation of the advising lawyer at the time of the
    initial consultation: at para. 50. The procedures of a DRE demand and urine
    sample demand and the offence of impaired driving are integrally related. The
    procedures would be within the expectation of a lawyer advising a person
    charged with impairing driving. As the trial judge stated, the advice given by
    counsel clearly should anticipate these probable outcomes: at para. 71.

[25]

At the relevant time, the
Code
specified procedures for the
    investigation of whether the offence of impaired driving under s. 253(1)(a) of
    the
Code
had occurred and specified consequences to those procedures.
[2]
The police were entitled to demand that a person submit to an evaluation by a
    DRE Officer, if there were reasonable and probable grounds to believe the
    offence of impaired driving had been committed: s. 254(3.1). If, on completion
    of the evaluation, the DRE Officer had reasonable grounds to believe that the
    persons ability to operate a motor vehicle was impaired by drug or alcohol,
    the DRE Officer could demand a sample of either oral fluid or urine: s.
    254(3.4)(a). Failure to comply with either demand was an offence: s. 254(5).

[26]

The statutory relationship between the procedures of a DRE demand and a
    urine sample demand on the one hand, and the offence of impaired driving on the
    other, does not permit the conclusion that the procedures fall outside the
    expectation of a lawyer advising a person who has been arrested or detained on
    a charge of impaired driving. That such demands might be made, and their
    consequences, would fall directly within the expected topics of advice counsel
    would give a person charged with impaired driving.

[27]

In
R. v. Fogarty,
2015 NSCA 6, 320 C.C.C. (3d) 348, the Nova
    Scotia Court of Appeal rejected an argument that a person who had spoken to
    counsel after receiving a DRE demand was entitled to re-consult counsel before
    deciding whether to comply with a fluids sample demand. The court stressed the
    relationship between the DRE demand and fluids sample demand procedures,
    inferring from that relationship that counsel would have been expected to
    advise about both in the consultation that did occur. At paras. 47-48, the court
    stated:

Sinclair
, para.
50
,
    says that [n]on-routine procedures, like participation in a line-up or
    submitting to a polygraph, will not generally fall within the expectation of
    the advising lawyer at the time of the initial consultation. In my view, a
    blood demand under s. 254(3.4) would occupy the expectation of the advising
    lawyer during the DRE consultation under s. 254(3.1). The point of the DRE is
    to determine whether to demand a fluids sample. That is clear from s. 254(3.4):
    If, on completion of the evaluation, the evaluating officer has reasonable
    grounds to believe, based on the evaluation, that the persons ability to
    operate a motor vehicle  is impaired by a drug  the evaluating officer may
    demand a sample of saliva, urine or blood.

The DRE and blood demand are not disjunctive
    investigative techniques. Rather, the DRE culminates in the fluids demand. That
    linear progression is apparent from the plain words of ss. 254(3.1) and (3.4),
    with which competent counsel would be familiar. During the DRE consultation
    with the client, competent counsel would expect that a failed DRE likely would
    trigger a demand for blood, urine or saliva, and would advise the client
    respecting that eventuality.

[28]

In
R. v. Wilkinson
, 2014 ONCJ 515, 319 C.R.R. (2d) 327, the
    accused was arrested on a charge of impaired driving, read a breath demand, and
    advised of her right to counsel. After she declined to speak to counsel, a
    breath test was conducted. The police then made a DRE demand and conducted a drug
    evaluation resulting in a request for a urine sample. The accused was not
    re-advised of a right to counsel before the DRE demand or drug evaluation. The trial
    judge rejected the argument that the accused should have been re-advised of s.
    10(b) rights before the drug evaluation and that therefore her s. 10(b) rights
    were infringed, relying on the relationship between the offence of impaired
    driving and the procedures the
Code
enacted to investigate that
    offence. At para. 14, the court said:

I do not regard the progress from alcohol-related
    breath testing to the DRE process within the same investigation for impaired
    driving as being a transition to a non-routine procedure as described in
Sinclair
. The issue as contemplated by the Supreme Court of Canada requires
    that the accused face a significantly changed set of circumstances then that
    which existed at the time of the initial advice of her right to consult
    counsel.

[29]

There is no issue in this case of any variance
    between legal advice competent counsel would be expected to provide to a person
    detained on a charge of impaired driving, and the actual advice the appellant
    received. In
Sinclair
, at para. 57, the majority
    stated: It is assumed that the initial legal advice received was sufficient
    and correct in relation to how the detainee should exercise his or her rights
    in the context of the police investigation. The failure to provide an
    additional opportunity to consult counsel will constitute a breach of s. 10(b)
    only when it becomes clear, as a result of changed circumstances or new
    developments, that the initial advice, viewed contextually, is no longer
    sufficient or correct. In this case,
there was no evidence as to the
    content of the actual advice the appellant received. The appellant must accept
    the assumption that the legal advice he received was, in its context,
    sufficient and correct.

[30]

Thus, there is no basis here to reach the conclusion that the
    initial advice the appellant received, after being charged with impaired
    driving, was not sufficient and correct to address the foreseeable consequences
    of that charge, namely a DRE demand and depending upon its result, an oral
    fluid or urine sample demand. There was, to use the words of
Fogarty
,
    a linear progression from one to the other, a progression expressly
    contemplated by the
Code
. What occurred here, after the initial
    advice of counsel, was neither the result of changed circumstances or new
    developments. The procedures undertaken by the police were not, viewed in the
    context of an impaired driving investigation, non-routine such as to fall
    outside of what would be expected to be covered by the initial advice the
    appellant received.

(ii)

The Second Category in
Sinclair
Does Not Apply

[31]

For similar reasons, I reject the argument that the
    second circumstance in
Sinclair
, a change in
    jeopardy, applies.

[32]

The appellant argues that, unlike other
    investigative techniques, the procedures of a DRE demand and urine sample
    demand carry not only a self-incrimination risk if the demands are complied
    with, but the additional risk that non-compliance can constitute an offence.
    Thus, the making of either demand changes the jeopardy an accused faces beyond
    that in place under the impaired driving charge itself.

[33]

The change in jeopardy that
Sinclair
posits as giving rise to a right to re-consult occurs where, after the
    initial consultation, an investigation has taken a new and more serious turn
    as events unfold: at para. 51. Since the initial advice is expected to have
    been tailored to the situation as the detainee and his lawyer then understand
    it, such a turn must be one that takes matters beyond that situation and the
    expectations it gave rise to: at para. 51.

[34]

Determining whether such a turn has occurred requires
    a comparison between, on the one hand, the situation and jeopardy that counsel
    and the detainee would understand at the time of their initial consultation,
    and on the other hand, the  situation and jeopardy that has arisen as a result
    of subsequent events. A change in jeopardy will require an accused to be
    provided an additional opportunity to consult counsel, where there is either a
    discrete change in the purpose of the investigation, one involving a different
    and unrelated offence or a significantly more serious offence that that
    contemplated at the time of the warning.:
R. v. Guthrie
, 2016 ONCA 466 at para. 11 (internal citations omitted).

[35]

The consequences of foreseeable investigative
    procedures in an impaired driving investigation  the prospect that compliance
    with either a DRE demand or oral fluid or urine sample demand may yield
    evidence that incriminates the accused and that non-compliance may be an
    offence  is not a new jeopardy arising from a new and more serious turn of
    events. It is not a discrete change in the purpose of the impaired driving investigation
    to an offence not contemplated at the time the appellant exercised his right to
    counsel. Just as the procedures themselves are foreseeable at the time of the
    initial consultation, the jeopardy arising from them is also foreseeable and within
    the expected subject matter of the initial consultation.

(iii)

The Third Category in
Sinclair
Does Not Apply

[36]

Nor do I agree that the third category in
Sinclair
applies. This category   arises where an accused may not have understood the
    initial s. 10(b) advice of his right to counsel, or where the police undermine
    the legal advice that the detainee has received: at para. 52.

[37]

Here, there is no suggestion of the police having undermined any
    advice. As to the appellants understanding, the trial judge expressly found
    that the appellant did understand his rights to counsel at all times and
    indeed his right to remain silent: at para. 60. As I have mentioned above,
    there was no evidence of the content of the actual advice the appellant
    received, and the appellant did not give evidence that there was any aspect of
    it he did not understand. The trial judge did not find the appellant a credible
    witness; he was not obliged to find that the appellants reaction to the DRE Officer
    reminding him he had spoken to counsel, or his request to speak to counsel
    again in response to the demand for a urine sample, indicated the appellants
    failure to understand advice he had received. As the majority stated in
Sinclair
:
    It is not enough for the accused to assert, after the fact, that he was confused
    or needed help, absent objective indicators that renewed legal consultation was
    required to permit him to make a meaningful choice as to whether to cooperate
    with the police investigation or refuse to do so:
at para. 55. No
    such objective factors are present here.

(iv)

No New Category Should Be Created Here

[38]

Although
Sinclair
makes it clear
    that the categories of cases in which there is a right to re-consult counsel
    are not closed, a new category should only be developed where there is a
    change of circumstances that makes a second consultation necessary to ensure
    that s. 10(b) has achieved its purpose: at para. 49. Where the circumstances
    do not fall within one of the three previously recognized situations, the
    question is whether a further opportunity to consult a lawyer is necessary to
    fulfill s. 10(b)s purpose of providing the detainee with advice
in the new or emergent situation

    (emphasis added): at para. 54.

[39]

For the reasons above, neither a DRE demand under
    what was then s. 254(3.1), nor an oral fluid or urine sample demand under what
    was then s. 254(3.4), is a change of circumstances from those facing a person
    detained on a charge of impaired driving. A person who has received legal
    advice (assumed to be sufficient and correct) after such a charge does not face
    a new or emergent situation when either demand is made. Because the demands are
    foreseeable and the initial advice would be expected to address them and their
    consequences, it would not be appropriate to create a new category of cases in
    which there is an entitlement to a second consultation with counsel to cover
    the circumstances in the case at bar.

(v)

Conclusion on Right to Re-Consult

[40]

Accordingly, I conclude that no breach of the
    appellants s. 10(b) rights occurred and reject this ground of appeal.

[41]

In light of my conclusion that no infringement of
    the
Charter
took place, it is unnecessary for me
    to consider whether, if there had been a breach, evidence should have been
    excluded under s. 24(2) of the
Charter
, or whether
    a broader remedy of a new trial should be ordered under s. 24(1) of the
Charter
.

B.

THE CAUSATION GROUND OF APPEAL

[42]

The appellants complaint about the causation
    conclusion reached by the trial judge focuses on para. 54 of his reasons:

I find that the defendant was in control of the
    motor vehicle when it backed up and crushed Brian Finley. I find that some
    action on his part while he was impaired led to the vehicle moving backwards
    and pinning Brian Finley in between the defendants car and the police cruiser.
    To be so convinced, I do not need to know whether it was caused by a removal of
    his foot from the gas, or a placing of the vehicle in reverse, or any
    combination of his actions. I find he was in control of the vehicle when it
    moved.

[43]

The appellant submits that these reasons are
    insufficient, and reverse the onus of proof. He argues that the trial judge was
    faced with conflicting evidence about the circumstances of the accident, and he
    did not resolve the inconsistencies. For example, the trial judge did not deal
    with the appellants evidence that prior to the car moving backwards, one of
    the officers had said to him: Move the car forward. My colleague cant pass
    through. The appellant argues that it would have made a difference if the
    appellant was moving the car after a request by the police to do so, and the trial
    judges reasons simply do not deal with this.

[44]

I would not give effect to this argument. While it may have made
    a difference if the appellant had been asked to move the car backwards by the
    police and in doing so he had struck one of the officers, I fail to see how the
    appellant would have been assisted by a finding that he had been asked to move the
    car

forward
, given that he moved
    it
backwards
. In any event, the trial judge did not find
    the appellant to be a credible witness. He accepted the evidence of the police
    officers that the appellant was in control of the vehicle when it moved
    backwards and struck PC Finley. He found on the evidence that it was some action
    on the appellants part that caused the car to move backwards, a finding that
    was open to him on the record.

[45]

The causation issue in this case was not complex.
    The trial judges findings were sufficient in the circumstances, and do not
    involve any reversal of the onus of proof.

C.

THE SENTENCE APPEAL

[46]

The appellant argues that the trial judges
    imposition of a custodial sentence was unfit, and his reasons are insufficient
    to explain why he did so. I disagree.

[47]

The relatively short custodial sentence here does
    not fall outside the range for similar offences. The trial judge reviewed the
    need for the sentence to reflect denunciation and deterrence, and he adverted
    to and considered relevant aggravating and mitigating factors.

[48]

Sentencing decisions attract a high level of
    deference on appeal:
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089, at paras. 39-41 and 43-44. In my view, no error of
    principle or law has been shown, nor is the sentence demonstrably unfit having
    regard to the seriousness of the offence and the blameworthiness of the
    offender. There is no basis for appellate intervention, except in respect to the
    victim surcharge, which must be set aside under
R. v. Boudreault
,
    2018 SCC 58, 429 D.L.R. (4th) 583.

V.

CONCLUSION

[49]

I would dismiss the conviction appeal, grant leave
    to appeal sentence, set aside the victim surcharge, but otherwise dismiss the
    sentence appeal.

Released: A.H January 29, 2020

B. Zarnett J.A.

I agree. Alexandra Hoy A.C.J.O.

I agree. Doherty J.A.

[1]

In 2018, ss. 253-255 of the
Code
were repealed and
    replaced with s. 320 of the
Code
.

[2]
The offence of impaired driving by drug causing bodily harm under what was then
    s. 255(2) of the
Code
included the commission of the offence of impairing
    driving under what was then s. 253(1)(a): Everyone who commits an offence
    under paragraph 253(1)(a) and causes bodily harm to another person as a result
    is guilty of an indictable offence and liable to imprisonment for a term of not
    more than 10 years.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yusuf, 2020 ONCA 69

DATE: 20200130

DOCKET: C65516

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahad Yusuf

Appellant

Jessica Zita, for the appellant

Nicolas de Montigny, for the respondent

Heard and released orally:
    January 20, 2020

On appeal from the conviction entered on
    November 9, 2017 and the sentence imposed on April 13, 2018 by Justice Neil L.
    Kozloff of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Ontario
    Court of Justice, the appellant was convicted of robbery; unlawful confinement;
    and breach of recognizance arising out of his participation in a home invasion
    robbery. The trial judge imposed a sentence of 4.5 years from which he deduced
    21.5 months credit for pre-sentence custody. The net sentence imposed was 2
    years, 10 months and 15 days.

[2]

The appellant appeals both conviction and
    sentence.

The Appeal from Conviction

[3]

On the appeal from conviction, the appellant
    advances arguments which challenge the conviction of unlawful confinement only.

[4]

In our view, these arguments fail.

The Background Facts

[5]

The offences arise out of a home invasion of an
    apartment occupied by three students at a local community college. The
    appellant, who was known to the principal victim, was the person who arranged
    to attend at the apartment on a pretext. When the victim answered the door and
    turned his back to it, the appellant and two others, who were masked, entered
    the premises. One was armed with what the trial judge found was an imitation
    firearm. The victims were confined within their home and several items of
    personal property, including cash and various items of electronic equipment, taken
    from them.

The Grounds of Appeal

[6]

The appellant contends that the conviction of
    unlawful confinement cannot stand because:

i.

the offence did not amount to a separate delict
    discrete from the conduct that constituted the offence of robbery;

ii.

the trial judge erroneously applied the
    principles set down in
Kienapple v. R
., [1975] 1 S.C.R. 729, to
    conclude that the offence of unlawful confinement had been made out; and

iii.

the trial judge ruled on the application of the
Kienapple
principle in giving his reasons for conviction when the issue had not been
    raised by either counsel, and did not afford counsel the opportunity to make
    submissions.

[7]

We reject these complaints of error.

Discussion

[8]

The evidence adduced at trial, taken as a whole,
    amply supports the finding of guilt of unlawful confinement. This is not a
    case, in our view, in which it can be said that there was not a domination and
    coercive restraint of the principal victim of a sufficient length of time to
    attract liability for unlawful confinement discrete from the appellants
    liability for robbery.

[9]

In our view, it would have been better had the
    trial judge not dealt with the application of the principles in
Kienapple
until after he recorded his findings of guilt, or at the time of sentencing,
    and received submissions from counsel on the issue. However, the appellant
    suffered no tangible prejudice. Above all else, the ruling was correct.

The Appeal from Sentence

[10]

As to sentence, the appellant says that the
    principal sentence imposed on him should have been four years, rather than four
    and one-half years. The appellant points to the principle of restraint and to
    the jump principle in support of this submission.

[11]

In our view, the sentence imposed reflects no
    error in principle. It sits within the range of sentence fit for this offence
    and the offender who committed it. There is no basis for our interference.

DISPOSITION

[12]

The appeal from conviction is dismissed. Leave
    to appeal sentence is granted, but the appeal from sentence is dismissed,
    except to the extent that the victim surcharge imposed by the trial judge is
    set aside.

David Watt J.A.

M. Tulloch J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

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

DATE: 20200128

DOCKET: C66207

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

BETWEEN

Royal
    Canadian Mortgage Investment Corporation

Plaintiff (Respondent)

and

1835923 Ontario Ltd. and Dudett
    A. Kumar

Defendants (Appellants)

No one appearing for the appellants

George Corsianos, for the respondent

Heard and released orally: January 16, 2020

On appeal from the judgment of Justice Gisele
    M. Miller of the Superior Court of Justice, dated October 30, 2018.

REASONS FOR DECISION

[1]

The appellants, 1835923 Ontario Limited (183)
    and Dudett A. Kumar, appeal the judgment of the motion judge in the respondent
    Royal Canadian Mortgage Investment Corporations mortgage enforcement action.
    The motion judge ordered the appellants to, among other things, pay the
    respondent $626,719.59 on account of principal money, fees and interest to
    October 30, 2018 under the mortgage and deliver possession of the mortgaged rental
    property to the respondent.

[2]

On January 13, 2020, the President of this panel
    denied the appellant 183s request for an adjournment of this appeal and
    ordered that if on January 16, 2020 (the date the appeal was scheduled to be
    heard) Mr. Surinder Kumar or an agent did not appear for 183, and Mrs. Dudett Kumar
    did not appear, the panel 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.
    Counsel for the respondent was agreeable to this. The order ensured that the
    matter would be considered on its merits by the full panel.

[3]

This morning, Mr. Kumar sent a letter to this
    court again asking for an adjournment. No one attended for 183 and Mrs. Kumar
    did not attend.

[4]

The history of delay in this matter is set out
    in the reasons for denying the adjournment request on January 13, 2020:
Royal
    Canadian Mortgage Investment Corporation v. 1835923 Ontario Ltd.
, 2020
    ONCA 45. We will not repeat it.

[5]

We have considered the further request for an
    adjournment and see no reason to depart from the order of January 13, 2020.

[6]

Accordingly, we considered the merits of the
    appeal relying on the written materials filed by the parties without oral
    submissions from counsel for the respondent.

[7]

The appellant 183 arranged a second mortgage on
    the property with the respondent. Mrs. Kumar guaranteed this mortgage. The
    first mortgage on the property had matured before 183 arranged the second
    mortgage and had not been paid. The respondents 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. Mr. Kumars
    evidence on the summary judgment motion was that he was unaware the first
    mortgage was in default and that the appellants continued to make payments
    under the first mortgage after securing the second mortgage. While Mr. Kumar made
    a bald allegation in a supplementary affidavit that the respondents were aware that
    the first mortgage had matured prior to arranging the second mortgage, there is
    nothing in the record to substantiate this. Indeed, it would appear to be
    inconsistent with Mr. Kumars own assertion that he thought the first mortgage
    had been renewed when he arranged the second mortgage.

[8]

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.

[9]

On appeal, the appellants argue that the second
    mortgage was
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) in the alternative, 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; and (3) in the further alternative, because the first mortgage had
    matured before the second mortgage was issued, the appellant 183 was in default
    as soon as it granted the second mortgage.

[10]

There is no merit to these arguments. It was the
    appellants responsibility and not the respondents obligation to ensure that
    the first mortgage had been renewed and was in good standing.

[11]

Accordingly, the appeal is dismissed.

[12]

After orally releasing these reasons for
    dismissing the appeal, we permitted the respondent to make brief oral
    submissions as to costs. In accordance with the mortgage, the respondent is
    entitled to costs of the appeal in the amount of in the amount of $6,825.

Alexandra
    Hoy A.C.J.O.

Doherty
    J.A.

Marrocco
    A.C.J.S.C. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: Temedio v. Niagara North Condominium Corporation
    No. 6, 2020 ONCA 17

DATE: 20200110

DOCKET: M50995 (C66339)

Paciocco, Harvison Young and
    Zarnett JJ.A.

BETWEEN

Jean Temedio

Applicant

(Appellant/Responding
    Party)

and

Niagara
    North Condominium Corporation No. 6

and
    Simpson Wigle Law LLP

Respondents

(Respondents/Moving
    Parties)

Erik Savas, for the appellant

Benjamin J. Rutherford, for the respondents

Heard: In writing

REASONS FOR DECISION

[1]

Before this panel, Niagara North Condominium Corporation No. 6 (Niagara)
    and Simpson Wigle Law LLP (together referred to as the respondents/moving
    parties) unsuccessfully defended an appeal brought by Jean Temedio (
Temedio
    v. Niagara North Condominium Corporation No. 6
, 2019 ONCA 762). In that appeal
    decision, this panel ordered that an application judge, McArthur J., erred by
    failing to find special circumstances entitling Ms. Temedio to conduct an
    otherwise out-of-time assessment of Simpson Wigle Law LLPs accounts, which
    were incurred in the enforcement of by-law provisions that Ms. Temedio was
    allegedly violating. Although those legal accounts were incurred by Niagara,
    Niagara claims that Ms. Temedio is obliged to pay them pursuant to s. 134 of
    the
Condominium Act, 1998
, S.O. 1998, c. 19 and the condominium by-laws
    governing Ms. Temedios ownership of a condominium in a building owned by
    Niagara.

[2]

The respondents/moving parties now ask this panel to exercise this
    courts exceptional authority to reconsider its special circumstance finding,
    and hence the outcome of its decision. They contend that reconsideration is
    clearly in the interests of justice because this panel relied on a special
    circumstance that Ms. Temedio had not put before the application judge or the
    appeal panel, and that the respondents/moving parties could have answered conclusively
    had it known this circumstance was going to be considered. Specifically, in
    finding special circumstances, this panel relied upon the decision of an
    earlier application judge, Taylor J. The impugned passages from this courts
    appeal decision read:

[30] Similarly, a consideration of the length of time spent
    arguing the application, the number of pages of materials filed, or whether Ms.
    Temedios counsel correctly predicted how large the Corporations claim for
    legal fees would be, are not determinative of whether special circumstances
    exist for Ms. Temedio to assess the bills. This is especially so given that
    Taylor J. made a finding about why the Corporations legal bills may have risen
    to what they were, which raise questions about the fees charged. The
    application judge failed to take this into account.

[31] Taylor J. voiced his disapproval of the conduct of the
    Corporation in seeking the extreme remedy of eviction (which the Corporation
    did not obtain) and observed that a less heavy-handed approach on its part
    might have avoided litigation altogether. Ms. Temedio was on the receiving end
    of that unsuccessful strategy and approach, yet to the extent the legal bills
    to the Corporation included time spent on it, Ms. Temedio is being asked to pay
    for it. The extent to which the fees charged may include amounts for pursuing
    the failed eviction strategy and the heavy-handed approach raise questions
    about the amount of the legal bills. So too does the fact that Taylor J.
    limited the Corporation to an award of $2,500 in costs for the compliance
    proceeding; this also raises a question about the total fees of $52,000 charged
    for that proceeding.

[3]

We deny the application for reconsideration. The appeal was from an
    application in which Ms. Temedio argued that special circumstances existed
    because the accounts she was being told to pay were excessive. In the appeal,
    Ms. Temedio pleaded and argued that the application judge erred in not finding
    special circumstances. The reasonableness of the accounts as a special
    consideration was therefore squarely before this court.

[4]

There is clear relevance between the findings made by an application
    judge relating to legal costs and the reasonableness of legal costs. Taylor J.s
    decision on costs was referenced in the materials filed by both parties in this
    court and before the application judge. The respondents/moving parties factum
    on appeal described Taylor J.s decision in detail, including the costs
    decision he made.

[5]

Moreover, the decision of Taylor J. was but one of several factors
    relied upon by this panel and was offered in support of the more general
    conclusion that the time spent arguing an application and the number of pages of
    material filed cannot be determinative of whether special circumstances exist. Taylor
    J.s ruling was not decisive in the appeal.

[6]

Even if it had been true that the respondents/moving parties were not
    reasonably alerted to the materiality of Taylor J.s decision during the appeal,
    the information that the respondents/moving parties seek to rely on could not
    have affected the result.

[7]

First, the challenges the respondents/moving parties make to the
    propriety and reasonableness of the decision of Taylor J. represent an improper
    collateral attack on that decision, which was never appealed nor reviewed. Those
    submissions are not properly before this panel.

[8]

Second, proof that the respondents/moving parties made offers to settle
    the litigation that Ms. Temedio did not accept provides no answer to whether
    there were special circumstances to justify an assessment, whatever the
    relevance of the offers to settle might be on an ultimate assessment. Taylor J.s
    point was that had the respondents/moving parties taken a less heavy-handed
    approach, the litigation that generated the bulk of the accounts could have
    been avoided. The fact that the respondents/moving parties offered to settle
    the litigation that Taylor J. considered to have been unnecessarily provoked by
    the respondents/moving parties cannot answer the material concern that costs
    incurred may not have been necessary.

[9]

The application for reconsideration is denied. The parties will have ten
    days following the release of this decision to provide costs submission not to
    exceed three pages, as well as bills of costs relating to the costs for of this
    motion.

David
    M. Paciocco J.A.

Harvison
    Young J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Thompson v. Casey, 2020 ONCA 5

DATE: 20200107

DOCKET: C67032

Brown, Huscroft and Trotter JJ.A.

BETWEEN

Brian Thompson

Applicant (Appellant)

and

Mary Eileen Casey, Ronald Albert Ornsby, Jennifer
    Matthews and 1007937 Ontario Inc.

Respondents (Respondents)

Christopher Salazar, for the appellant

K. Jay Ralston, for the respondent Mary Eileen Casey

Heard: December 17, 2019

On appeal from the
    order of Justice Mary E. Vallee of the Superior Court of Justice dated May 2,
    2019, with reasons reported at 2019 ONSC 2760.

REASONS FOR DECISION

[1]

The sale of a modest-sized business completed on
    September 20, 2010 has spawned three related proceedings that have not yet reached
    definitive, final determinations on their merits.

[2]

The vendor of the business, 1007937 Ontario Inc.
    (the Corporation), of which Ronald Ornsby is the principal, sold its
    Fendleys Flowers operation to Jennifer Matthews for $165,000. In partial
    payment of the purchase price, Matthews executed a promissory note in the
    amount of $130,000 in
favour
of 1007937 Ontario. The
    Corporation, at the direction of Ornsby, immediately assigned the note to its accountant
    and Ornsbys friend, the appellant Brian Thompson, who had lent money to
    Ornsby, but not to the Corporation.

[3]

The Corporations bank  and secured creditor to
    the tune of approximately $250,000  had refused to provide a comfort letter
    requested by the Corporation to enable the sale transaction to proceed. Nevertheless,
    it appears that Ornsby sold, and Matthews bought, the business in the face of
    that refusal. When the bank found out what had happened, it called its loan and
    gave notice of its intention to realize on its security.

[4]

Ornsbys common-law spouse for several years, the
    respondent Mary Eileen Casey, had guaranteed the Corporations debt. The bank
    looked to her for payment. She paid the bank and received an assignment of the
    banks security over the assets of the Corporation.

[5]

Three proceedings ensued:

(i) On
    March 23, 2011, Casey sued the Corporation (Barrie Superior Court file 11-0291),
    seeking indemnity for the amount she paid to the bank in respect of the
    Corporations indebtedness;

(ii) On
    June 21, 2012, Casey sued Ornsby and Matthews (Barrie Superior Court file
    12-0720) seeking payment under the security agreement assigned to her by the
    bank and damages against Ornsby for oppressive conduct in respect of the
    Corporations indebtedness to the bank; and

(iii) On
    October 4, 2018, the appellant, Thompson, commenced this application against
    Casey, Ornsby, the Corporation, and Matthews seeking various forms of relief
    that, taken together, would require Matthews to pay the balance due under the
    promissory note to Thompson. The application appears to have been prompted by
    two events: (i) Matthews had stopped making monthly payments to Thompson on the
    note, and (ii) Caseys two proceedings had not yet gone to trial, despite the
    extensive passage of time.

[6]

The application judge dismissed Thompsons
    application, but on a without-prejudice basis.

[7]

We see no error in the application judges conclusion
    that in order to determine the claim of priority asserted by Thompson to the
    proceeds of Matthews promissory note, Thompson first had to demonstrate the validity
    of the assignment of the note from the Corporation. At para. 41 of her reasons,
    the application judge explained why, on the evidence filed and legal
    submissions made before her, she was not able to determine the issue of the
    validity of the assignment of the promissory note.

[8]

Yet, the application judge went on to state that
    she was available to the parties to further consider the issue. In the result, although
    she dismissed Thompsons application, she did so without prejudice to Mr.
    Thompsons bringing further proceedings to prove the validity of the assignment
    because he did not address that issue in this application. If he does bring
    further proceedings, given the complexity of this matter[,] I will remain
    seized: at para. 42.

[9]

Thompson submits that the application judge
    erred in making that disposition because, on any view of the facts, Casey was
    out of time to challenge his claim to priority to the proceeds from the
    promissory note. In our view, that is far from clear given the matters put in
    issue by Casey in the pleadings in her two actions, which she started within
    two years of the sale transaction.

[10]

However, for other reasons we conclude that the
    application judge erred in her disposition of this proceeding. While an
    application judge has broad discretion under r. 38.10(1) of the
Rules
    of Civil Procedure

in deciding how to dispose of an
    application, to which this court must accord deference, the application judge
    erred in principle in making the specific disposition that she did. She
    identified an issue that required further consideration on the merits but
    dismissed the application on a without-prejudice basis, thereby deferring the determination
    of that issue to a new proceeding, of which she seized herself. By proceeding
    in that fashion, the application judges disposition ran counter to: (i) the principle
    expressed by s. 138 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, to avoid, as far as possible, the
    multiplicity of proceedings; and (ii) the related principle found in r.
    1.04(1.1) that the court shall make orders that are proportionate to the
    importance and complexity of the issues. Instead of dismissing the application
    on a without-prejudice basis and putting the parties to the expense of yet
    another proceeding, the application judge should have directed the trial of an
    issue, or the whole application, pursuant to r. 38.10(1)(b) and remained seized
    of the matter.

[11]

We allow the appeal to the extent of setting
    aside the Order and remit the application to the Superior Court of Justice for
    further direction and determination.

[12]

When the legal expenses incurred to date just in
    this application are compared to the modest amounts in dispute in this
    proceeding and the two Casey actions, these cases cry out for combined management
    and disposition, preceded by a vigorous pre-trial conference in the very near
    future. Almost a decade has elapsed since the events that spawned these
    proceedings. The time has come to determine them on their merits.

[13]

We leave the issue of the costs incurred below
    up until the date of the Order to the final disposition of the application. Given
    the mixed success of the parties on this appeal, we make no order as to the
    costs of the appeal.

David
    Brown J.A.

Grant
    Huscroft J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wangdah Material Toronto Ltd. v.
    1691530 Ontario Ltd., 2020 ONCA 28

DATE: 20200120

DOCKET: C66457

Gillese, Rouleau and Fairburn
    JJ.A.

BETWEEN

Wangdah Material Toronto Ltd. and Qing Chen

Applicants (Appellants)

and

1691530
    Ontario Ltd.

Respondent (Respondent)

AND BETWEEN

1691530 Ontario Ltd.

Applicant
    (Respondent)

and

Wangdah Material Toronto Ltd. and Qing Chen

Respondents
    (Appellants)

Qing Chen, acting in person

Robert Wood, for the respondent

Heard: January 13, 2020

On
    appeal from the judgment of Justice Thomas Lederer of the Superior Court of
    Justice, dated December 27, 2018, with reasons reported at 2018 ONSC 7714.

REASONS FOR DECISION

I.

BACKGROUND

[1]

The parties were involved in purchasing vehicles
    and exporting them to China. The appellants would arrange to purchase vehicles
    and pay deposits for them. On a vehicle-by-vehicle basis, the respondent would agree
    with the appellants to take over the agreement of purchase and sale. Once the
    vehicles were sold in China, the respondent would pay the appellant, Mr. Chen, a
    commission based on the profits from the sale.

[2]

The appellants purchased two vehicles with the
    respondents money but refused to deliver those vehicles to the respondent for
    export. Instead, the appellants sold them to a third party and kept the
    proceeds. This resulted in the respondent refusing to do further business with
    the appellants. At the time that the respondent severed the relationship
    between the parties, the appellants had paid deposits on 63 vehicles which had
    not yet been delivered to the respondent.

[3]

The respondent brought an application seeking
    compensation for the conversion of the two vehicles sold by the appellants to a
    third party. The appellants commenced a counter-application alleging breach of
    contract and seeking to set off against the amounts claimed for conversion damages
    for, among other things, the unpaid deposits, unpaid commissions, and various allegedly
    improper deductions.

[4]

This matter was the subject of lengthy case
    management discussions. Ultimately, the parties agreed upon the amount of money
    that was subject to the claim of conversion arising from the improper sale of
    the two vehicles to the third parties. That amount was reduced by amounts that
    the respondent agreed it owed the appellants for commissions and HST. After
    these calculations, the respondent claimed it should recover $79,159.81 for the
    conversions.

[5]

The appellants maintained that this amount
    should be further reduced by the value of the deposits on the 63 vehicles,
    improperly deducted administrative fees, and improper capital interest deductions.

[6]

The applications were determined by way of
    summary trial pursuant to r. 38.10 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194.

II.

THE DECISION BELOW

[7]

The trial judge found that there was no
    overarching contract governing a consistent and continuing business
    relationship between the parties. Rather, he concluded that there were a series
    of individual and independent contracts between the parties which were entered
    into on a vehicle-by-vehicle basis. The trial judge concluded that the parties
    had not yet entered into agreements in relation to the 63 vehicles at issue by
    the time the respondent refused to do any further business with the appellants.
    In the absence of an overarching contract, he held that there was no obligation
    on the respondent to take any of the vehicles on which the appellants had
    placed deposits.

[8]

The trial judge also concluded that the set-off
    claim relating to the administrative fees and capital interest payments could
    not succeed. Administrative fees of this type were commonplace in arrangements
    such as those existing here and the interest payments arose from the
    respondents need to obtain financing to cover costs of vehicles and shipping
    before the sales were complete. The appellants were aware of those costs and
    the need to contribute to administration costs and the interest payments
    arising from the financing.

[9]

Accordingly, the trial judge concluded that the
    appellants had no right to be reimbursed for the unpaid deposits or the administration
    fees and interest charges. Those amounts could not be set-off against the money
    realized by the appellants through the conversion of the two vehicles. The
    appellants were ordered to pay the respondent $79,159.81.

III.

ISSUES ON APPEAL

[10]

The appellants challenge the trial judges
    decision to dismiss their breach of contract claims and object to the factual
    findings made by the trial judge. The standard of review for factual findings and
    questions of contractual interpretation is one of palpable and overriding
    error. The appellants have shown no basis upon which to interfere with those
    findings. An appeal is not a second trial. There was evidence supporting each
    one of the trial judges factual conclusions and we defer to them.

[11]

The appellants also claim that the respondent
    falsified the agreements which formed the basis of the conversion claim. They
    argue that the trial judge inappropriately stopped him from exploring that
    matter during the cross-examination of the respondent. We see no error on the
    part of the trial judge. The documents in question were irrelevant to the
    issues to be decided at trial. The conversion claim had already been determined
    during the case management phase of the proceedings. Liability for conversion
    had been admitted by the appellants, as reflected in the case management
    judges endorsements.

[12]

The appellants also suggest that there is a
    reasonable apprehension of bias on the part of the trial judge. We see nothing to
    support this suggestion. To the contrary, the record reveals that the trial
    judge presided over this matter in a patient and fair way, one that ensured
    meaningful access to justice for a self-represented litigant.

IV.

DISPOSITION

[13]

The appeal is dismissed. The appellants shall
    pay costs fixed in the amount of $14,000 all inclusive to the respondent.

Eileen E. Gillese J.A.

Paul Rouleau J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: York (Regional Municipality) v.
    Irwin, 2020 ONCA 44

DATE: 20200124

DOCKET: M50990

van
    Rensburg J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen ex Rel.

The Regional Municipality of York

Applicant (Responding Party)

and

Robert
    Irwin

Respondent (Moving Party)

Gerard C. Borean, for the moving party

Chris G. Bendick, for the responding
    party

Heard and released orally: January 21, 2020

REASONS
    FOR DECISION

[1]

This is a motion for leave to appeal under s.
    131 of the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (the POA).

[2]

The moving party Robert Irwin was charged in 2013
    with various offences under Part III of the POA, for failure to comply with six
    building inspectors orders issued that year under the
Building Code Act
,
1992, S.O. 1992, c. 23, in connection with construction at his commercial
    property. The orders required in each case that he obtain the required
    building permit or remove the unauthorized construction and restore the
    building/property to its former use. In his defence, Mr. Irwin testified that
    he had confronted essentially the same building inspectors orders and charges
    in 1996, 17 years earlier, and that the charges had been withdrawn after he had
    applied for and obtained the building permits.

[3]

Mr. Irwin was acquitted at first instance by a
    Justice of the Peace who provided detailed reasons for her decision. Among
    other things, she rejected the Regional Municipalitys argument that Mr.
    Irwins defence amounted to a collateral attack on the building inspectors
    orders which had not been appealed under s. 25 of the
Building Code Act
.
    The Justice of the Peace made findings in Mr. Irwins favour with respect to
    other defences, including estoppel and officially-induced error. She concluded
    her reasons by stating that, based on the evidence, the prosecution had not
    proven its case beyond a reasonable doubt that Mr. Irwin was not issued the
    building permits.

[4]

The Regional Municipality appealed the acquittal
    to a justice of the Ontario Court of Justice. The OCJ justice, among other
    things, accepted the collateral attack argument and substituted a conviction on
    all the charges, fining Mr. Irwin $600.

[5]

Mr. Irwin seeks leave to appeal to this court.

[6]

At the centre of the proposed appeal is the
    interpretation and application of the doctrine of collateral attack.

[7]

Mr. Irwin says that he was not challenging the
    2013 orders in his defence to the prosecution but was raising the fact of the
    previous orders and stating that there was nothing further to be done. Moreover,
    he says that the conclusion of the Justice of the Peace that the prosecution
    had not proven that he had failed to obtain the orders was fully supported by
    the evidence, and there was no basis at law for the OCJ justice to interfere.

[8]

Mr. Irwins evidence at trial was that his
    copies of the building permits were in the possession of his lawyer whose
    office was destroyed in a fire that took the lawyers life. The Regional Municipality
    had no record of the building permits, although there was evidence that Mr.
    Irwin applied for permits, and that building permit file numbers may have been
    assigned. A 1998 internal memo from the City of Vaughan confirmed that a site
    plan submitted for approval had gone missing.

[9]

I am satisfied that the test for leave to appeal
    under s. 131 of the POA is met.

[10]

The appeal raises a question of law respecting
    the interpretation and application of the doctrine of collateral attack. While
    a second appeal is exceptional in provincial offences matters, in this case,
    the first appeal substituted a conviction for an acquittal. Mr. Irwin seeks to
    restore the acquittal, relying on alleged errors of law. There are special
    grounds, and in the particular circumstances of this case, it is essential for
    the due administration of justice that leave to appeal be granted. Despite Mr.
    Bendicks able argument, I do not accept that the implications of the
    conviction are not significant to Mr. Irwin, or that there is no broader public
    interest. While Mr. Irwin was fined $600, the effect of the decision on the
    last appeal is that he remains out of compliance with the 2013 orders and may face
    further potential prosecution or enforcement actions because of his continuing
    breach. As for the broader public interest, there is the precedential value of
    the OCJ justices decision holding, in effect, that the doctrine of collateral
    attack applies where a partys defence is that they have complied with an order
    that they have not appealed.

[11]

Leave to appeal is therefore granted.

[12]

Mr. Irwin seeks costs of his successful motion. The
    Regional Municipality questions the authority of the court to award costs in
    these proceedings, and in any event opposes an award of costs. The issue of costs
    of this motion is best reserved to the panel hearing the appeal and I so order.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: York Region Standard Condominium Corporation

No. 1206 v. 520 Steeles Developments Inc., 2020 ONCA 63

DATE: 20200131

DOCKET: C67084

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

BETWEEN

York Region Standard Condominium Corporation No.
1206

Plaintiff
(Respondent/Appellant by way of cross-appeal)

and

520 Steeles
Developments Inc., 7 Brighton Place Inc., Kantium Development &
Construction Inc., Liberty Development Corporation, Darcon Inc., Mondconsult
Limited, York Region Common Element Condominium 1210, Affinity Aluminium Systems
Ltd., JIT Professional Services Inc., Siu Hong (Ernie) Leung, P. Eng., Quest Window
Systems Inc., Rouslan Tcholii, P. Eng., Ya Ping (Tom) Zhang, P. Eng., Toms Structural
Steel Detailing, Ya Ping (Tom) Zhang Structural Engineers & Solution Developers,
Nasser Heidari, P. Eng., NCN Engineering Services Ltd., NCN Engineering
Services Inc., Torsteel Company Co. Limited, Vorstadt Incorporated, Vorstadt Superior
Roof, Vorstadts Superior Sheet Metal Ltd., Duron Ontario Ltd., C&A Tedesco
Waterproofing Inc., Saverino General Contractors Ltd., Advanced Precast Inc., Mukesh
Patel, P.Eng., MRP Design Services, Delgant (Civil) Ltd., Delgant Construction Ltd.,
Delgant Limited, Resform Construction Ltd., Green Valley Inc., Global Plumbing &
Heating Inc., System Drywall & Acoustics, Mayfair Electric Limited, York
Sheet Metal Limited, Adjeleian Allen Rubeli Limited, Sigmund Soudack & Associates
Inc., Schaeffer & Associates Ltd., United Engineering Inc., A&G Engineering
Ltd., Disano Sprinkler Design Limited, EXP Services Inc./Les Services EXP Inc.,
Building Sciences Inc., Rafael & Bigauskas Architects, Sedun + Kanerva Architects
Inc., Strybos Barron King Ltd., Strybos Associates Ltd., Simerra Property
Management Inc., Simerra Property Management Ltd.,
360 Community Management
Ltd.
, Blandford Construction Services Inc., Marnick Fire Protection Inc., and
Defendants #1, #2, #3, #4, #5, #6, #7, #8, #9, #10, #11, #12, #13, #14, #15,
#16, #17, #18, #19, and #20

Defendants
(
Appellant/Respondent by way of cross-appeal
)

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

Heard: November 12, 2019

On appeal from the order of Justice Mario D. Faieta of
the Superior Court of Justice, dated May 31, 2019, with reasons reported at 2019
ONSC 2991.

Harvison Young J.A.:

A.

Overview

[1]

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 buildings 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.

[2]

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 disagree, 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
corporations failure to comply with the notice provision in s. 23(2) render
the action a nullity?

[3]

According to a strict reading of this courts 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.
I have concluded, however, that this courts decision in
Medhurst
has
been attenuated by subsequent Supreme Court of Canada jurisprudence. It has also
generated unnecessarily harsh effects which, as I will explain below, are
inconsistent with the purpose of the notice provision pursuant to the principles
of modern statutory interpretation. In my view, we should overrule
Medhurst
and hold that non-compliance with the notice provision does not render an action
a nullity. This conclusion determines the appellants summary judgment motion
below and I would therefore dismiss the appeal.

B.

Background

[4]

Subsection 23(1) of the Act provides that a condominium corporation may,
on its own behalf and on behalf of an owner, commence an action for, among
other things, damages in respect of damage to the condominium or in respect of
a contract involving the condominium. Section 23(2) requires notice be given to
the condominium owners before commencing such an action:

Before
commencing an action mentioned in subsection (1),
the corporation
shall
give written notice of the general nature of the
action to all persons whose names appear in the record of the corporation required
by section 46.1 or are required by that section to appear in that record except
if,

(a) the action is to enforce a lien of the corporation under
section 85 or to fulfill its duty under subsection 17(3); or

(b) the action is commenced in the
Small Claims Court.

[Emphasis added.]

[5]

The condominium corporation authorized its counsel to issue a notice of
action claiming relief against various persons, including its former property
manager 360, for damages related to deficient construction of the residential
condominium building. The notice of action was issued on March 11, 2016.

[6]

The allegations against 360 were based in breach of contract, negligence
and breach of fiduciary duty arising out of alleged failures to properly manage
the buildings common elements, to properly manage a Tarion warranty claim and to
notify the condominium corporation of health and safety issues.

[7]

On March 18, 2016, the condominium corporation circulated a package of
documents to condominium owners which, among other things, outlined the general
nature of the action. It explained to condominium owners that the notice of
action was filed out of concern for an expiring limitation period. It also
included a draft statement of claim.

[8]

The documents sent to the condominium owners also provided notice of the
annual general meeting to be held on April 4, 2016. While the Act does not
require condominium owners to authorize the filing of a statement of claim, one
agenda item at the annual general meeting was the approval of the draft
pleading. At this meeting, the members voted in favour of filing the statement
of claim and it was filed on April 8, 2016.

[9]

360 brought a motion for summary judgment, arguing that the action,
having been commenced in contravention of the s. 23(2) notice requirement, was
a nullity.

C.

Decision Below

[10]

The motion judge first held that the notice provision at s. 23(2) of the
Act did not apply to a claim by a condominium corporation arising from a
contract that it had entered into with another person. The action against 360
arose out of the contractual responsibilities it had to the condominium
corporation and therefore, in the motion judges view, fell outside the scope
of s. 23 of the Act.

[11]

In any event, the motion judge found that the condominium corporation
had, in fact, complied with the notice requirement in s. 23(2) on the basis
that the action had not been commenced when the notice of action was issued on March
11, 2016, but rather when the statement of claim was filed on April 8, 2016.
Notice had been provided prior to the issuance of the statement of claim which
the motion judge found sufficient to comply with s. 23(2).

[12]

Given these conclusions, the motion judge dismissed the summary judgment
motion. He concluded that the notice requirement at s. 23(2) was not applicable
to this case. Even if it applied, the motion judge would have found that the
condominium corporation had complied with it.

[13]

The motion judge observed, however, that failure to comply with the
notice requirement renders an action a nullity, if s. 23 applies. He noted that
despite concerns about the harshness of this result, this courts decision in
Medhurst
is binding authority for the
proposition
that non-compliance with s. 23(2) results in the
proceeding being a nullity.

D.

Issues

[14]

The parties raise three central 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?

[15]

To dispose of the appeal, however, it is only necessary to address the first
issue. If non-compliance with s. 23(2) does not render an action a nullity,
then the summary judgment motion was properly dismissed regardless of whether
s. 23(2) applies or was complied with. Given that I agree with the condominium
corporation that non-compliance should not render the action a nullity, my
analysis focuses on the first issue and this is sufficient to dispose of this
matter. Nevertheless, I offer a brief comment on the second issue. I decline to
address the third issue.

E.

Analysis

(1)

The Action is Not a Nullity

[16]

I conclude that this action is not a nullity. This courts decision in
Medhurst
should be overruled as it has been attenuated by subsequent jurisprudence and
generates harsh effects unconnected to the purposes underlying the Act. An
application of the proper principles leads me to conclude that regardless of
whether or not the condominium corporation complied with s. 23(2) of the Act,
this action is not a nullity.

(a)

The Decision in
Medhurst

[17]

My analysis begins with a consideration of this courts decision in
Medhurst
,
which stands as a leading authority on the nullity issue in the context of s.
23 of the Act.

[18]

At first instance in that case, Gray J. of the Ontario High Court of
Justice was asked to dismiss an action on the grounds that notice was not given
pursuant to s. 14 of
The Condominium Act, 1978
, S.O. 1978, c. 84,
which is the precursor to s. 23 of the current Act. In brief oral reasons, he
dismissed the action on the basis that a failure to comply with the notice
requirement resulted in the proceeding being a nullity:
York Condominium
Corp. No. 46 v. Medhurst, Hogg & Associates Ltd. et al.
(1982), 39 O.R.
(2d) 389 (H.C.), affd 41 O.R. (2d) 800 (C.A.). The rationale for this
conclusion was the absence of any explicit statutory power to stay an action in
the text of the Act. Given this fact, Gray J. concluded that there was no
indication that the legislator intended courts to relieve parties from
non-compliance, leaving nullity as the consequence:

[I]f the legislature had intended judges to have the power to
stay the action, quite apart from any inherent power to stay itself,  such a
staying procedure would have been set forth in the clear language of the
Condominium
Act
which has engaged the attention of the legislature now for some time
in the past few years.

In the result, I have reached the
conclusion that the proceeding is a nullity by reason of the absence of notice
and an order will therefore go dismissing the action without prejudice to the
right of the plaintiff to launch a new action if so advised presumably with
compliance with the procedural requirements.

[19]

In still briefer reasons, this court upheld Gray J.s decision. The
appeal reasons, in their entirety, read:

The causes of action in this case
appear to fall within s. 14(1) of the
Condominium Act
, R.S.O. 1980, c.
84, and Gray J. was right, therefore, in requiring that notice be given in
accordance with the subsection. We agree with the reasons of Gray J. for
dismissing the action. The appeal is dismissed with costs. Since we have heard
this appeal together with Appeal No. 827/82, there will only be one set of
costs.

[20]

However brief, these reasons are unequivocal in endorsing the holding of
Gray J. that non-compliance with the notice provision results in a nullity. As
the motion judge in this case observed, it is thus
settled law
that an action by a condominium corporation of the type that comes within the
scope of s. 23 of the Act is a nullity in the absence of prior notice to the
owners: at para. 55, citing
Beckett Elevator Ltd. v. York
Condominium Corp. No. 42
(1984), 45 O.R. (2d) 699 (H.C.);
TSCC
2130 v. York Bremner Developments Limited
, 2016 ONSC 5393, 75 R.P.R. (5th)
243
.

(b)

Medhurst
Should be Overruled

[21]

Generally, this court will follow its previous decisions in order to
ensure the certainty and predictability of the law in Ontario. However, this is
not an absolute. Where the advantages of departing from the precedent outweigh
the disadvantages, taking into account the effect on the parties, future
litigants and on the administration of justice, this court may exceptionally
decline to follow a past decision:
David Polowin Real Estate Ltd. v.
Dominion of Canada General Insurance Co
. (2005), 76 O.R. (3d) 161 (C.A.),
at para. 127, leave to appeal refused, [2005] S.C.C.A. No. 388-95. A decision
to overrule precedent is rare because the values of certainty and
predictability weigh heavily in favour of adherence to precedent. The
circumstances in this case, however, warrant overruling
Medhurst
.

[22]

In particular,
Medhurst
is inconsistent with intervening
decisions of the Supreme Court of Canada which bind this court with respect to
the modern approach to statutory interpretation. As a result, its
jurisprudential value has been greatly attenuated in the years since it was
decided.

[23]

To demonstrate how
Medhurst
is inconsistent with the prevailing
approach to determining whether non-compliance results in a nullity, I first
outline this
prevailing approach.

[24]

Where a legislator imposes an imperative obligation on a person, and
that person does not fulfill this obligation, it is not always immediately
clear from the text of the legislation what the consequence of this failure
will be. In some cases, the consequence will be that actions taken in
contravention of the obligation are a nullity, and therefore that the failure
cannot be cured or overlooked by the court:
Montreal Street R. Co. v.
Normandin
(1914), 33 D.L.R. 195 (P.C.), at p. 198; Ruth Sullivan,
Sullivan
on the Construction of Statutes
, 6th ed. (Toronto: LexisNexis, 2014), at
para. 4.82.

[25]

To determine the consequence of non-compliance with a given statutory
obligation, the court engages in statutory interpretation:
British Columbia
(Attorney General) v. Canada (Attorney General);

An Act respecting the Vancouver
Island Railway (Re)
, [1994] 2 S.C.R. 41, at p. 123. The words of the Act must
be read in context and in their grammatical and ordinary sense harmoniously
with the scheme and object of the Act, and the intention of the legislator:
Rizzo
& Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21. A core
element of this modern approach to statutory interpretation is that the meaning
of legislation cannot be divined from the wording of the legislation alone, but
rather must be determined purposively and in context: Sullivan, at para. 2.2.
When determining whether nullity will result from non-compliance, the object of
the statute and the effects of ruling one way or another may be particularly
important:
Blueberry River Indian Band v. Canada (Department of Indian
Affairs and Northern Development)
, [1995] 4 S.C.R. 344, at para. 42,
per
McLachlin J. (concurring).

[26]

Medhurst
was decided in 1983, before
Rizzo
, and the
subsequent jurisprudence that has emphasized the role of legislative purpose in
the interpretation of statutes. The reasons endorsed in
Medhurst
were
premised on the absence of explicit language indicating the availability of a
stay, with no consideration given to the provisions intended purpose. Further,
in determining the consequence of statutory non-compliance,
Blueberry River
now directs us to put significant weight on the purpose of the obligation and
the effects of holding one way or another: at para. 42. Again, this contrasts
with the reasoning in
Medhurst
.

[27]

If
Medhurst
is disregarded and the requisite principles of
statutory interpretation are properly applied, it seems clear that
non-compliance with s. 23(2) should not render an action a nullity. There is
nothing in the text of the Act that suggests that breach of the notice
requirement carried the consequence of a nullity. Some legislative schemes
specify within the text of the legislation that non-compliance will result in a
nullity, see e.g.
Environmental Protection Act
, R.S.O. 1990, c. E.19,
s. 101(12), but in the absence of clear direction from the legislator, courts
will generally favour an interpretation that allows procedural irregularities
to be cured:
Lawrence v. International Brotherhood of Electrical Workers (IBEW),
Local 773
, 2017 ONCA 321, 138 O.R. (3d) 129, at para. 21, affd 2018 SCC
11, [2018] 1 S.C.R. 267. The fact that the Act is silent on the consequence of
a failure to comply with s. 23(2) does not support a consequence of nullity.

[28]

Further, it would be inconsistent with the purpose of the provision and
the Act to find that non-compliance results in a nullity. This court has
defined this Act as consumer protection legislation:
Harvey v. Talon
International Inc.
, 2017 ONCA 267, 137 O.R. (3d) 184, at para. 62. Section
23 in particular was enacted to ensure that condominium owners could bring an action
as a collective to recover for construction deficiencies in respect of common
elements:
1420041 Ontario Inc. v. 1 King West Inc.
, 2012 ONCA 249, 110 O.R. (3d) 241
, at
para. 16, leave to appeal refused, [2012] S.C.C.A. No. 272. As Myers J. found in
York Bremner
, the purpose of the notice requirement specifically is to
ensure that the condominium owners know that their corporation is about to sue
on their collective behalf: at para. 175. In other words, the purpose of s.
23(2) is to protect the condominium owners from their condominium corporation
by ensuring they are aware before it acts.

[29]

Finding that non-compliance with s. 23(2) results in a nullity would
undermine rather than support the purpose of this legislation. The section is
meant to regulate the relationship between the condominium corporation and the
condominium owners, not the relationship between the condominium corporation and
third parties. Third parties should not be able to escape liability to the condominium
owners because of a failure of the condominium corporation, acting on their
behalf, to properly notify the owners. Nullity leads to this perverse result by
allowing third parties to raise the procedural defect for their own benefit. It
is perverse to allow the provision to be used to the prejudice of the
condominium owners it was meant to protect.

[30]

This is especially so given that the Act as a whole is consumer protection
legislation directed at protecting condominium owners and that s. 23 was
enacted to facilitate actions against third parties by condominium owners as a
collective to vindicate their rights. Therefore, an interpretation of the Act
informed by its purpose does not support a finding of nullity.

[31]

Finally, finding that non-compliance results in a nullity would lead to
unnecessarily harsh effects and serve no intended purpose. When determining the
result of non-compliance, courts should be particularly aware of the potential
for adverse effects:
Blueberry River
, at para. 42.

[32]

For example, at issue in
Blueberry River
were provisions which
required a vote by the band to surrender land to be certified by oath of a
commissioner and submitted to the Governor-in-Council for approval. The band in
that case had technically not complied because the chiefs did not personally
certify the surrender on oath. McLachlin J. declined to find that this resulted
in nullity, noting that it would work serious inconvenience as surrendering
bands would be forced to go through the surrender process all over again as a
result of technical non-compliance: at para. 43.

[33]

Here, nullity would not just work serious inconvenience; it
could result in significant injustice. At the very least, it would require the
commencement of a new action. At worst, due to the expiration of a limitation
period, it could operate to defeat an otherwise meritorious action. This is
particularly unjust because the rights of condominium owners are in jeopardy
even though the notice requirement was enacted for the benefit and protection
of these owners. Permitting a defendant to take advantage of the notice
provision to invalidate otherwise meritorious claims for breach of the notice
requirement serves no intended purpose.

[34]

This is not a merely theoretical concern. In
York
Bremner
,

Myers J.
reluctantly applied
Medhurst
and found that the action at issue was a
nullity, despite noting, at paras. 173-74, that it made little practical sense
to do so:

I see no purpose
in holding the first claim a nullity. TSCC 2130 acted when it did and the
limitation period should be measured against that act in my view. I see no
reasons why YBDL should be able to take advantage of a notice provision in
favour of owners.

In my view, I am not entitled to ignore the clear
holding of the Court of Appeal in
Medhurst
that is binding on
me.  If an interpretation is to be found to save the first action, it
will have to be by the Court of Appeal or the Supreme Court of Canada.

[35]

The motion judge below echoed these same concerns, at paras.
54-56:

A finding that this action is a nullity for failure to comply
with the notice requirement found in s. 23 in these circumstances is a harsh
result and has the unintended consequence of resulting in a hardship to the
owners and a benefit to a defendant.

[D]espite the above concerns this
court is not entitled to ignore the Ontario Court of Appeals brief but clear
decision in
Medhurst
given the constraints of vertical
stare
decisis
.

[36]

This is not a case like
The Owners, Strata Plan LMS 888 v. The City
of Coquitlam et al
, 2003 BCSC 941, 15 B.C.L.R. (4th) 154, because pursuant
to the statute considered there, the right to commence an action was premised
on obtaining a vote of three quarters of the owners. By contrast, the Act
contains no such approval requirement. Rather, the condominium corporation is
empowered to commence an action subject only to the procedural requirement that
notice be given.

[37]

Even if non-compliance with s.
23(2) does not result in a nullity, this does not mean that there is no possible
consequence to such non-compliance. Non-compliance with a statutory provision
creates a procedural defect. The court has discretion to determine the effect,
if any, of such a procedural defect. Two key factors that a court will consider
are the extent of the non-compliance and the extent of any prejudice suffered
as a result of it: Sullivan, at para.
4.90.
I also note that in
considering how to address non-compliance with s. 23(2), courts have the
discretion to fashion appropriate remedies that accord with the object and
purpose of the Act, in accordance with ss. 134, 135 and 136 of that Act.

[38]

In short, holding that non-compliance with s. 23(2) results in a nullity
is not called for by the text of this provision, is wholly inconsistent with
its purpose and can lead to substantial injustice. In so holding,
Medhurst
is inconsistent with binding Supreme Court jurisprudence regarding the modern
approach to statutory interpretation and the concept of a statutory nullity.

[39]

Accordingly,
Medhurst
has been attenuated and this weighs in
favour of overruling it. The administration of justice would hardly be served
by upholding the precedent in
Medhurst
simply because it predates the
modern emphasis on a purposive interpretation of statutes. Rather, by overruling
Medhurst
the notice provision in the Act can be properly interpreted
in accordance with relevant jurisprudence and by consequence ensure the
coherence of the law in this respect.

[40]

Further,
Medhurst
is not simply a case which, with
the benefit of the subsequent jurisprudence, would likely have been decided
differently by this court, but is a decision which has the potential to cause
injustice. As noted above, holding that nullity must result from non-compliance
can lead to inconvenience and injustice to the very constituency  condominium
owners  that the provision was intended to protect. Automatically invalidating
otherwise meritorious claims for breach of the notice requirement serves no
intended purpose. The fact that adhering to
Medhurst
would impose
harsh unintended results on precisely those the Act was enacted to protect,
both the condominium owners in this litigation and condominium owners who may
be litigants in the future, weighs against following it.

[41]

On balance, I find this is one of the rare circumstances in which the
advantages of not following an earlier decision rendered by this court outweigh
the disadvantages. For that reason, I would overrule
Medhurst
.

(c)

Conclusion on Nullity

[42]

Applying the relevant principles to an analysis of s. 23 of the Act, and
contrary to the conclusion of the motion judge, even if this action is subject
to s. 23 and even if notice was not properly given in accordance with s. 23(2),
the underlying action is not a nullity.

[43]

In the particular circumstances of this case, I conclude that even if
the condominium corporation has failed to comply with this provision, it is
only a procedural irregularity that was cured. This non-compliance does not
entitle the appellant to summary judgment. In this case, it is not the
condominium owners themselves who assert non-compliance with the notice
requirement. Further, the condominium owners were provided with a synopsis of
the lawsuit that outlined the general nature of the action shortly after the
notice of action had been issued. It also included a draft statement of claim.
Although not required by the Act, the condominium owners subsequently
authorized the filing of the statement of claim. In the circumstances, no perceptible
prejudice resulted from the purported failure.

[44]

Accordingly, it is not necessary to decide the other issues. The motion below
was properly dismissed.

(2)

The Action was Commenced by Notice of Action

[45]

While it is not necessary to address the question of when the action was
commenced in order to dispose of the appeal, I nevertheless address the issue.
In my 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 the
Rules of Civil Procedure
, R.R.O. 1990,
Reg. 194, the action was commenced when the notice of action was issued.

[46]

The motion judge correctly held that an action is commenced for the
purposes of the
Rules
by the issuance of either a statement of claim
or a notice of action. He was also correct to point out that the definitions in
the
Rules
cannot control the meaning of terms used in the Act. The
motion judge, however, relied heavily on his view that, as there were no
significant costs consequences to filing a notice of action, interpreting an
action to be commenced by a notice of action did not advance the sole purpose
of the notice requirement.

[47]

I do not agree. First, the purpose of the notice requirement under the
Act involves more than costs consequences. Further, the
Rules
are
clear on this point. While normally the issuance of a statement of claim
commences the proceeding, in those instances where a notice of action is issued,
the latter then serves as the commencement of the proceeding. While a statute
might change that result, there is nothing in the wording of the Act that does
so in this case. It was not open to the motion judge to choose the commencement
date for the reasons that he did.

[48]

Therefore, the action in this case was commenced with the filing of the
notice of action, not the statement of claim.

F.

The Cross-appeal

[49]

Before concluding, I must deal with one procedural point.

[50]

In the event the appeal was allowed, the respondent brought a
cross-appeal seeking the dismissal of 360s motion for summary judgment on the
basis that the motion judge erred in concluding that non-compliance with s.
23(2) of the Act would have rendered the action a nullity. The cross-appeal, in
effect, sought to offer an alternative basis for upholding the motion judges
order dismissing the motion for summary judgment. The respondent did not seek
to set aside or vary the motion judges order or to obtain a different
disposition than that order.

[51]

This is not a proper cross-appeal as defined by r. 61.07(1). It is, in
essence, the respondents argument on the appeal dressed up in different
language.

[52]

The question as to the condominium corporations capacity to commence or
maintain the action absent compliance with the notice requirement in s. 23(2)
was clearly put in issue in the notice of appeal. The submissions from both
parties on the cross-appeal amount to arguments about whether the appeal should
be allowed or dismissed. Accordingly, I have treated all submissions in
relation to the cross-appeal as made in relation to the appeal.

[53]

Given that I would dismiss the appeal and given that the cross-appeal
was only pursued in the event that the appeal was allowed, the cross-appeal is
also dismissed.

G.

Conclusion

[54]

I would accordingly dismiss the appeal and the cross-appeal.

[55]

At the hearing, the parties advised the court that they had agreed that
costs of $15,000 would follow the event in each of the appeal and the
cross-appeal. As discussed above, the issues from the cross-appeal were
subsumed in the appeal in which the respondent was successful. I would order
costs to the respondent in the amount of $30,000.

Released: January 31, 2020

JCM

A. Harvison Young
J.A.

I agree J.C.
MacPherson J.A.

I agree Paul Rouleau
J.A.

I agree L.B. Roberts
J.A.

I agree I.V.B.
Nordheimer J.A.