



COURT OF APPEAL FOR ONTARIO

CITATION: Carleton Condominium Corporation
    No. 476 v. Wong, 2020 ONCA 244

DATE: 20200403

DOCKET: C67296

Paciocco J.A. (In Chambers)

BETWEEN

Carleton Condominium Corporation
    No. 476

Plaintiff (Respondent)

and

Newton Wong

Defendant (Appellant)

Newton Wong, acting in person

Cheryll Wood, for the respondent

Heard by teleconference: April
    2, 2020

REASONS FOR DECISION

[1]

The appeal in this matter is scheduled to be
    heard on April 9, 2020. Since oral in-person appeal hearings were suspended for
    the week of April 6, 2020 as a result of the Covid-19 health crisis, the
    parties were canvassed as to whether they would agree to having the appeal
    heard without an in-person hearing, or to have the matter adjourned to a date
    in September or early October. The parties could not agree. The appellant seeks
    an adjournment until September or early October. The respondent requests that
    the appeal proceed in writing, with an opportunity for the parties to respond
    to panel questions either by teleconference or videoconference on April 9,
    2020.

[2]

I conducted a teleconference hearing on April 2,
    2020, to rule on the appellants adjournment request and to decide how the
    appeal would proceed. It is in the interests of justice to have the appeal
    proceed in writing based on the materials filed. The parties will have an
    opportunity to respond, by teleconference, to any questions the panel may have,
    on the date set for the appeal, April 9, 2020.

[3]

By its nature, this appeal can be fairly
    adjudicated in writing. Although the respondent is self-represented, he is a
    lawyer. The written materials reflect that they were professionally prepared. The
    appellants materials present the issues with clarity and the appellants
    position is well developed. The respondents materials are responsive.

[4]

Moreover, the issues presented are, by their
    nature, capable of being adequately addressed in writing. The statutory
    interpretation questions raise narrow technical considerations that have been
    well delineated in the written materials. The sufficiency of the notice of lien
    can be easily calculated once the statutory arguments are resolved. The alleged
    misapprehension of evidence can be decided on the face of the record. The basis
    for the challenge to the limitation period finding, and the response, are also set
    out clearly. Again, they can be determined on the record with the assistance of
    the written argument made. The same is true of the vicarious liability issues
    raised in the counterclaim.

[5]

The appellant did not take the position during
    the teleconference that the appeal could not be resolved on the written record.
    He expressed a preference for taking the panel through the arguments during an in-court
    oral hearing at a future date. That preference is understandable, but it is not
    in the interests of justice.

[6]

With respect to the request to adjourn the
    matter to a future date, I accept the position of the respondent that the delay
    of the appeal would be prejudicial. It is not disputed that the appellant has withheld
    a significant amount of condominium fees pending the appeal, including debts
    accrued that are not linked to the debt that led the respondent to impose the
    lien that the appellant is now challenging. It is in the interests of justice
    to determine without further delay whether the shortfall that these withheld
    payments have generated should continue to be borne by other members of the
    condominium corporation.

[7]

Moreover, it is not in the interests of justice
    to overburden the court by adjourning matters that can be dealt with fairly, as
    scheduled. The backlog that will be created by cases that must be adjourned to
    protect the public and ensure fair hearings will be imposing and it should not
    be unnecessarily aggravated.

[8]

I have decided to order that the appeal proceed
    in writing rather than by remote oral hearing to ameliorate any litigation
    advantage that the respondents might have if a full, remote oral hearing is
    ordered. Although the appellant has not requested that the appeal be determined
    in writing, the appellant has taken the position that he cannot prepare
    adequately for an oral hearing because his materials are at his law firm and
    contain post-its and other endorsements that he would rely upon. He has made
    the personal choice, that I respect, that he will not risk the health of his
    employees by sending them into the office to assemble and retrieve this
    material, and he himself is not capable of doing so without help. He is uncomfortable
    working with electronic documents because he is accustomed to working with
    paper and is only slowly building up the technical capacity for his law firm
    employees to work remotely. In these circumstances, it would give the respondent
    a litigation advantage to conduct a full oral hearing, even by teleconference,
    since the respondent is not affected by similar limitations.

[9]

Similarly, that litigation advantage would arise
    for similar reasons if the parties were now invited to supplement their
    existing written submissions with further written arguments. Moreover, the
    parties did not suggest that further written arguments are required.

[10]

I appreciate that the impediments experienced by
    the appellant that I have described could pose challenges to the appellants
    facility to field any questions the panel may have, but these challenges can
    adequately by accommodated by accepting the respondents undertaking to furnish
    the appellant forthwith with electronic copies of all filed documents, which
    the appellant acknowledges he is capable of receiving electronically. I would
    also direct that the respondent file with the court the electronic copies of
    all filed documents sent to the appellant by sending them by email to
coa.e-file@ontario.ca
. Should any
    questions be posed by the panel that disadvantage the appellant given that he
    will not have his own annotated file, this can be addressed when those
    questions are posed. If necessary, the panel could invite a written response
    within a reasonable deadline.

[11]

The appellants adjournment request is denied. The
    appeal will proceed in writing, on condition that the respondent furnish to the
    appellant and file with the court, electronic copies of all documentation that
    has been filed with the court in connection with this appeal, by Monday, April 6
    at 12:00 p.m. Should the respondent be unable or unwilling to do so, I will
    entertain a further request for an adjournment.

[12]

Should any panel members determine that
    questions are necessary, those questions will be posed during a teleconference
    to be held at 2:00 p.m. on April 9, 2020. Arrangements will be made to schedule
    that teleconference and contact information will be sent to the parties. Should
    the panel determine that there are no questions required, the parties will be
    notified.

David
    M. Paciocco J.A.


