



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.


