Medhurst Overruled In Favour Of Consumer Protection

Condominium's Irregularity in Notice Under s.23, Curable

The long-awaited challenge to the precedent set in York Condominium Corp. No. 46 v. Medhurst, Hogg & Associates Ltd. et al. (1983), 41 O.R. (2d) 800 (C.A.) has been delivered by a unanimous five-member panel of the Court of Appeal. In its decision released January 31, 2020, the Court of Appeal held that a condominium corporation's imprecise compliance with the notice provisions of section 23(2) of the Condominium Act, 1998, S.O. 1998, c19, does not make the action a nullity.

The Court held that non-compliance with s.23(2) of the Condominium Act is not a defence available to outside party defendants, but a procedural irregularity that is curable by those persons the Act was intended to protect. The Court of Appeal affirmed that the Act was consumer protection legislation.

Section 23 of the Act requires a condominium corporation to give written notice of the general nature before commencing an action by the corporation for damages and costs in respect of any damage to the common elements, the assets of the corporation or individual units, to all unit owners and all other interested parties on the record of the corporation required by section 46.1 (usually unit mortgagees).

The issue of notice was most recently ventilated in the 2016 case of TSCC 2130 v. York Bremner Developments Limited, 2016 ONSC 5393, 75 R.P.R. (5th) 243, where Mr. Justice Myers, in holding the action was a nullity for the condominium corporation's failure to give notice, commented he was bound through stare decicis by the Medhurst decision and that it was for the Court of Appeal or Supreme Court to decide otherwise. York Bremner ultimately settled without an appeal decision, leaving the Medhurst question unresolved.

In York Region Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc. et.al. 2020 ONCA 63, the Court of Appeal, exercised its rarely used discretion and overruled Medhurst.

Medhurst was decided 37 years earlier, by the same Court in a brief decision, affirming it was settled law that non-compliance with the notice provision of s.14 of the Condominium Act, 1978, S.O. 1978, c. 84, (which is the precursor to s.23 of the current Act), rendered an action for damages by a condominium corporation a nullity on the grounds that the then Condominium Act did not provide a remedy for noncompliant actions.

In 2020, the Court of Appeal held that Medhurst had been superseded by subsequent Supreme...