Court Of Appeal Summaries (April 20 ' 24, 2020)

Published date04 May 2020
AuthorMr John Polyzogopoulos
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation
Law FirmBlaney McMurtry LLP

Good afternoon.

Please find our summaries of last week's civil decisions of the Court of Appeal for Ontario (there were three substantive civil decisions).

The most notable decision of the week was Girao v. Cunningham, 2020 ONCA 260, a potential candidate for top appeal of the year. While the decision does not deal with novel issues (it was an MVA case), it provides extensive summaries of the law of evidence and trial practice relating to the admissibility of joint document briefs, expert evidence and evidence of partial settlement (in respect of collateral statutory accident benefits) at trial. It also deals with striking jury notices where a self-represented litigant is involved, and provides courts and counsel with a reminder of the heightened importance of trial fairness when one of the parties is self-represented. Self-represented litigants simply cannot be treated by the courts or by opposing counsel the same way as ordinary litigants who have counsel.

The other two substantive decisions related to notices of lien for unpaid common expenses under the Condominium Act, 1998, and a second MVA decision relating to the recoverability of household expenses and attendant care under the SABs where there was no evidence of such expenses being incurred.

Table of Contents

Civil Decisions

Carleton Condominium Corporation No. 476 v. Wong , 2020 ONCA 263

Keywords: Real Property, Condominiums, Common Expenses, Liens, Notice, Agency, Vicarious Liability, Civil Procedure, Summary Judgment, Condominium Act, 1998, S.O. 1998 c. 19, s. 85(4), Legislation Act, 2006, S.O. 2006, c. 21, s. 89(3), Rules of Civil Procedure, Rules 3.01(1)(a), 16.06(2), 20.04(2.1), Universal Showcase Ltd. v. U.S.W.A., [2001] O.J. No. 2570 (S.C.), Hryniak v. Mauldin, 2014 SCC 7, Straus Estate v. Decaire, 2012 ONCA 918

Pucci v. The Wawanesa Mutual Insurance Company , 2020 ONCA 265

Keywords: Contracts, Insurance, Automobile Insurance, Statutory Accident Benefits, Catastrophic Impairment, Statutory Accident Benefit Schedule, O. Reg 34/10, s. 3(7)(e), 3(8), Monks v. ING Insurance Company of Canada, 2008 ONCA 269, McMichael v. Belair Insurance Co. (2007), 86 O.R. (3d) 68 (Ont. Div. Ct.)

Girao v. Cunningham , 2020 ONCA 260

Keywords: Torts, Negligence, MVA, Damages, General Damages, Pecuniary Damages, Mitigation, Collateral Benefits, Statutory Accident Benefits, Double Recovery, Civil Procedure, Procedural Fairness, Trials, Jury Trials, Jury Charges, Self-Represented Litigants, Procedural Fairness, Evidence, Admissibility, Hearsay, Documentary Evidence, Expert Opinion Evidence, Joint Trial Briefs, Business Records, Medical Reports, Insurance Act, R.S.O. c. I.8, ss. 267.5(5), 267.8, Evidence Act, R.S.O. 1990, c. E. 23, ss. 35 and 52, Rules of Civil Procedure, Rules 4.1.01, 25.06(1), 47.02, 51, 53.03, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 108(3), 134(1), 134(6), Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Vokes Estate v. Palmer, 2012 ONCA 510, 1162740 Ontario Ltd. v. Pingue, 2017 ONCA 52, Iannarella v. Corbett, 2015 ONCA 110, Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Abbey, 2017 ONCA 640, Westerhof v. Gee Estate, 2015 ONCA 206, leave to appeal refused, [2015] S.C.C.A. No 198, R. v. Bradshaw, 2017 SCC 35, Kapulica v. Dumancic, [1968] 2 O.R. 438 (C.A.); Reimer v. Thivierge, [1999] 46 O.R. (3d) 309 (C.A.), Doran v. Melhado, 2015 ONSC 2845, Robb Estate v. Canadian Red Cross Society (2001), 152 O.A.C. 60 (Ont. C.A.) McGregor v. Crossland, [1994] O.J. No. 310 (Ont. C.A.), Hunter v. Ellenberger (1988), 25 C.P.C. (2d) 14 (Ont. H.C.), Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.), Chisholm v. Liberty Mutual Group (2002), 60 O.R. (3d) 776 (C.A.), Cadieux (Litigation Guardian of) v. Cloutier, 2018 ONCA 903, leave to appeal refused, [2019] S.C.C.A. No. 63, Basandra v. Sforza, 2016 ONCA 251, Malfara v. Vukojevic, 2014 ONSC 6604, Draper v. Jacklyn (1969), [1970] S.C.R. 92, R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, R. v. Meddoui, [1991] 3 S.C.R. 320, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, R. v. Truscott (2006), 216 O.A.C. 217 (C.A.), Farrugia v. Ahmadi, 2019 ONSC 4261, Peloso v. 778561 Ontario Inc. (2005), 28 C.C.L.I. (4th) 10 (Ont. S.C.), Ismail v. Flemming, 2018 ONSC 5979, Kitchenham v. AXA Insurance, 23 C.C.L.I. (4th) 76 (Ont. S.C.), rev'd on other grounds, 229 O.A.C. 249 (Div Ct.), rev'd on other grounds, 2008 ONCA 877, 94 O.R. (3d) 276, McLean v. Knox, 2013 ONCA 357, Djermanovic v. McKenzie, 2014 ONSC 1335, R. v. Krause, [1986] 2 S.C.R. 466, R. v. F. (J.E.) (1993), 16 O.R. (3d) 1 (C.A.), R. v. Bouhsass (2003), 169 C.C.C. (3d) 444 (Ont. C.A.), R. v. R. (A.J.) (1994), 20 O.R. (3d) 405, [1994] O.J. No. 2309 (C.A.), R. v. Hawke, (1974), 3 O.R. (2d) 201 (Ont. H.C.), rev'd on other grounds (1975), 22 C.C.C. (2d) 19, [1975] O.J. No. 2200 (Ont. C.A.), Pintea v. Johns, 2017 SCC 23, Morwald-Benevides v. Benevides, 2019 ONCA 1023, Sanzone v. Schechter, 2016 ONCA 566, Kempf v. Nguyen, 2015 ONCA 114, Cowles v. Balac (2006), 83 O.R. (3d) 660, leave to appeal refused, [2006] S.C.C.A. No. 496, McDonald-Wright v. O'Herlihy, 2007 ONCA 89, Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 60 O.R. (3d) 665 (C.A.), Graham v. Rourke, [1990] O.J. No. 2314 (C.A.), Desjardins v. Arcadian Restaurants Ltd. (2005), 77 O.R. (3d) 27 (Ont. S.C.), Belende c. Greenspoon, 2006 Carswell 9135

Criminal Decisions

R. v. O., 2020 ONCA 261

Keywords: Criminal Law, Fraud, Theft, R. v. O'Connor, [1995] 4 S.C.R. 411, R. v. Mehan, 2016 BCCA 129

R. v. W.M., 2020 ONCA 266

Keywords: Criminal Law, Sexual Assault, Bail, R. v. Manasseri, 2017 ONCA 226, R. v. St-Cloud, 2015 SCC 27

R. v. L.K., 2020 ONCA 262

Keywords: Criminal Law, Sexual Assault, Criminal Negligence, Obstructing Justice, R. v. Keinapple, [1975] 1 S.C.R. 729

R. v. T., 2020 ONCA 264

Keywords: Criminal Law, Possession Of Cocaine For The Purpose Of Trafficking, Right to Freedom from Arbitrary Detention, Canadian Charter of Rights and Freedoms, R. v. Suberu, 2009 SCC 33, R. v. Grant, 2009 SCC 32, R. v. Mann, 2004 SCC 52


Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA

Paciocco, Zarnett and Thorburn JJ.A.


Newton Wong, acting in person
Cheryll Wood, for the respondent
Keywords: Real Property, Condominiums, Common Expenses, Liens, Notice, Agency, Vicarious Liability, Civil Procedure, Summary Judgment, Condominium Act, 1998, S.O. 1998 c. 19, s. 85(4), Legislation Act, 2006, S.O. 2006, c. 21, s. 89(3), Rules of Civil Procedure, Rules 3.01(1)(a), 16.06(2), 20.04(2.1), Universal Showcase Ltd. v. U.S.W.A., [2001] O.J. No. 2570 (S.C.), Hryniak v. Mauldin, 2014 SCC 7, Straus Estate v. Decaire, 2012 ONCA 918


The motion judge granted summary judgment against the appellant, N.W., in favour of the respondent, Carleton Condominium Corp. No. 476, and dismissed the appellant's counterclaim. The summary judgment related to the common expense arrears the motion judge found the appellant owed the respondent. The motion judge found that the appellant received timely written notice that a certificate of lien would be registered relating to those arrears, and that the lien the respondent subsequently registered was valid, and he gave judgment accordingly.
In the counterclaim that was dismissed, the appellant had claimed that the respondent was vicariously liable for damages caused by the negligence of its employee, L, relating to the management of the rental of the condominium unit on the appellant's behalf.


Did the motion judge err in:

(i) interpreting the legislative provisions that govern the relevant notice period relating to the registration of a lien; in finding that the notice period had been met; and in finding that the lien was valid;
(ii) finding that the counterclaim was statute-barred; and in finding that there was no genuine issue requiring a trial on that issue;
(iii) finding that in any event there was no genuine issue requiring a trial relating to the appellant's assertion that the respondent had vicarious liability for the activities of L?


Appeal dismissed.


(i) No. The court did not accept the appellant's contention that the motion judge misconstrued the respondent's evidence in finding that the notice of lien was sent on January 21, 2014. The court also disagreed with the appellant's argument that the motion judge erred in applying legislation that defines the required notice period. The motion judge held that s. 89(3) Legislation Act, 2006 governed the calculation of the notice period, which states that a number of days between two events excludes the day on which the first event happened. The judge held that, in applying this section, ten days of notice had been given and therefore s. 85(4) of the Condominium Act, 1998, which states that notice must be given at least 10 days before a certificate of lien is registered, had been satisfied. The appellant argued that in addition to 89(3), 89(5) of the Legislation Act, 2006, which states that "a period of time described as beginning before or after a specified day excludes that day", should have been applied. Had this subsection been applied, the notice would have been found to be 9 days, failing to meet the threshold in s. 85(4) of the Condominium Act, 1998. The court held that it is impossible for both sections to apply and the motion judge was correct to apply only s. 89(3).
Section 85(4) contemplates that the corporation must (1) give notice of the lien, and (2) register a certificate of lien. It also describes the minimum number of days that must elapse between the two actions. Accordingly, it is appropriate to interpret the notice provision in s. 85(4) as excluding the giving of notice and including the registration of the certificate of lien in accordance with s. 89(3) of the Legislation Act...

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