



COURT OF APPEAL FOR ONTARIO

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

DATE: April 22, 2020

DOCKET: C67296

Paciocco, Zarnett and Thorburn
    JJ.A.

BETWEEN

Carleton Condominium Corporation
    No. 476

Plaintiff (Respondent)

and

Newton Wong

Defendant (Appellant)

Newton Wong, acting in person

Cheryll Wood, for the respondent

Heard: In writing

On appeal from the order/judgment of
    Justice Marc R. Labrosse of the Superior Court of Justice, dated July 10, 2019,
    with reasons reported at 2019 ONSC 4207.

REASONS FOR DECISION


[1]

The motion judge granted summary judgment
    against the appellant, Newton Wong, in favour of the respondent, Carleton
    Condominium Corp. No. 476. He also dismissed the appellants counterclaim against
    the respondent.

[2]

The summary judgment secured by the respondent relates
    to common expense arrears that the motion judge found the appellant owed the respondent,
    pertaining to a residential condominium unit owned by the appellant. 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.

[3]

In the appellants dismissed counterclaim, he
    claimed that the respondent was vicariously liable for damages caused by the negligence
    of its employee, Mr. Ben Laurin, relating to Mr. Laurins management of the
    rental of the condominium unit on the appellants behalf.

[4]

The appellants appeal from these decisions was
    ordered to be heard in writing. The appellant argues that the motion judge:

A.

Erred in 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;

B.

Erred in finding that the counterclaim was statute
    barred; and in finding that there was no genuine issue requiring a trial on
    that issue; and

C.

Erred in finding that in any event there was no
    genuine issue requiring a trial relating to the appellants assertion that the respondent
    had vicarious liability for the activities of Mr. Laurin.

[5]

In supplementary written argument, the appellant
    maintains that the lien ordered by the motion judge should not include costs
    incurred by the respondent in defending the counterclaim and argues that the legal
    costs included in the lien are excessive, particularly the rate of interest
    sought to be imposed.

[6]

We do not accept any of the grounds of appeal
    raised.

ANALYSIS

A.

THE LIEN NOTICE PERIOD

[7]

The motion judge found that the written notice
    of lien was sent by registered mail on January 21, 2014, and that the
    certificate of lien was registered on January 31, 2014. We do not accept the appellants
    contention that the motion judge misconstrued the respondents evidence in
    finding that the notice of lien was sent on January 21, 2014. The motion judge
    committed no palpable and overriding error in accepting the respondents
    evidence to that effect, notwithstanding that the respondents affiant did not
    have personal knowledge of this fact. The affiant was entitled to rely on her information
    and belief but, more importantly, her evidence was supported by an archived
    letter in the respondents files, which was before the motion judge. Moreover,
    the appellant presented no evidence to the contrary.

[8]

The appellant argues that the motion judge erred
    in applying legislation that defines the required notice period. Again, we
    disagree. The principal provision is found in
Condominium Act
,
1998,
S.O. 1998 c. 19, which provides:

85
(4)
    At least 10 days before the date a certificate of lien is registered, the
    corporation shall give written notice of the lien to the owner whose unit is
    affected by the lien.

[9]

The motion judge held that
Legislation Act
,
2006
, S.O. 2006, c. 21, s. 89(3), governed the calculation of the
    notice period, and he relied on this section in calculating the notice period. Section
    89(3) provides:

89
(3)
    A reference to a number of days between two events excludes the day on which
    the first event happens and includes the day on which the second event happens,
    even if the reference is to at least or not less than a number of days.

[10]

By applying only s. 89(3), the motion judge
    excluded from the notice period the day the notice was sent, and included the
    date the lien was registered, leaving ten days of notice, thereby satisfying s.
    85(4) of the
Condominium Act
.

[11]

The appellant now argues that this was wrong,
    and that both ss. 89(3) and 89(5) of the
Legislation Act
should have
    been applied. Section 89(5) provides:

89
(5)
    A period of time described as beginning before or after a specified day
    excludes that day.

[12]

The appellant contends that had s. 89(5) also
    been applied along with s. 89(3), as it should have been, the motion judge
    would have been required to exclude, as well, the day the certificate of lien
    was registered, leaving an insufficient notice period of 9 days.

[13]

We do not accept the appellants position that
both
ss. 89(3) and 89(5) of the
Legislation Act
apply. That is impossible since s. 89(3) provides expressly that the day on
    which the second event happens, ostensibly in this case the registration of the
    certificate of lien, is to be
included
, and s.
    89(5) provides that the specified day, also ostensibly the registration of
    the certificate of lien, is to be
excluded
. It is
    therefore impossible for both sections to operate together.

[14]

The motion judge was correct to apply only s.
    89(3) of the
Legislation Act
. Section 85(4) of the
Condominium Act
describes the period between two events that must occur for a condominium corporation
    to obtain the full benefit of the lien contemplated in s. 85 of that Act.
    Section 85(4) of the
Condominium Act
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. As such, it is appropriate to interpret the notice provision in s.
    85(4) of the
Condominium Act
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
.

[15]

The appellant argues that since s. 85(4) of the
Condominium
    Act
employs the phrase before the day a certificate of lien is
    registered, s. 85(4) of the
Condominium Act
is brought within s.
    89(5) of the
Legislation Act
. We do not agree. The use of the word
    before in describing the period that must pass prior to the second event does
    not change the fact that s. 85(4) of the
Condominium Act
does not
    specify a date. It describes a number of days between two events, within the
    meaning of s. 89(3) of the
Legislation Act
. The word before is a
    common way of describing the correlation between two events separated by a
    period of time; providing that one of two described events must happen before
    the other cannot, on its own, oust the application of s. 89(3) of the
Legislation
Act, and require the application of s. 89(5) of the
Legislation Act
.

[16]

In supplementary written argument, the appellant
    seeks to invoke the common law principle of construction that the use of the
    words at least in reference to a notice period should be interpreted as a
    reference to clear days, in this case, requiring at least ten clear days
    between the giving of written notice and registration of the certificate of
    lien, respectively:
Universal Showcase Ltd. v. U.S.W.A.
, [2001] O.J.
    No. 2570 (S.C.), at para. 5; see also
Ashton v.
Powers (1922), 67
    D.L.R. 222 (Ont. S.C.), at 224. This common law principle does not apply. It
    has been ousted by s. 89(3) of the
Legislation Act
, which states that
    this section applies even if the reference is to 
at
    least
 or not less than a number of days (emphasis added). Indeed,
    language in r. 3.01(1)(a) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, that is virtually identical to s. 85(4) of the
Condominium
    Act
has been noted to be a departure from the common law principle: see
Universal
    Showcase
, at para. 6. Nor does the federal
Interpretation
Act,
    R.S.C., 1985, c. I-21, s. 27, assist in interpreting the provincial
Condominium
    Act
.

[17]

Finally, the appellant argues that the trial
    judge erred in failing to apply r. 16.06(2) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, which provides that service by mail is effective on the
    fifth day after the document is mailed. The appellant seeks to rely on this
    rule of civil procedure in support of his claim that the notice provided was
    inadequate. The
Rules of Civil Procedure
do not apply to the notice
    required by the
Condominium Act
, s. 85(4). Rule 1.02(1) makes clear
    that those rules apply in civil proceedings. The notice provided for in the
Condominium
    Act
, s. 85(4), is not part of a civil proceeding. Moreover, in this case, Carleton
    Condominium Corporation No. 476 By-Law 1 stipulates in Article IX(1) that
    notice is deemed to have been given when deposited in a post office or public
    letter box. The motion judge correctly rejected the appellants attempt to rely
    on r. 16.06(2) to extend the notice period.

[18]

The motion judge did not err in granting summary
    judgment relating to the respondents action and in ordering the relief he did.

B.

The Limitation Period

[19]

The appellant argues that the motion judge erred
    in finding that the counterclaim was statute barred and that there was no
    genuine issue requiring a trial in respect of the limitation period. The
    essence of the appellants arguments is his contention that the motion judge
    erred in relying on his fact-finding power under r. 20.04(2.1) to find that the
    applicable two-year limitation period had expired prior to the issuance of the
    counterclaim on May 27, 2016. In particular, he contends that the motion judge
    had no basis for finding that the affidavit of the appellants assistant, Ms.
    Lum, did not credibly assert that Mr. Laurins negligence occurred and was
    discovered in the fall of 2014, within the limitation period. He also argues
    that the motion judge should not have relied on the manifestly uncertain
    answers he provided during his own examination for discovery. Specifically, during
    his examination for discovery the appellant linked the timing of Mr. Laurins
    negligence to the period prior to the death of Mr. Laurins wife, which occurred
    in 2012; those answers, if true, would have rendered the counterclaim statute
    barred.

[20]

We do not accept this ground of appeal. The
    enhanced fact-finding powers available under r. 20.04(.2.1) are presumptively
    available and may be used unless it is in the interest of justice for the fact-finding
    power to be exercised only at trial:
Hryniak v. Mauldin
, 2014 SCC 7,
    [2014] 1 S.C.R. 87, at para. 45. We see no palpable and overriding error in the
    motion judges decision to use his enhanced fact-finding powers in granting
    summary judgment. The motion judge called the relevant factual findings
    unmistakable, and with good reason. The Lum affidavit, which was devoid of
    detail and which offered an estimate that the meeting with Mr. Laurin was in or
    about the Fall of 2014, was contradicted by the appellants examination for discovery,
    in which he: (1) linked Mr. Laurins alleged negligence and his discovery of it
    to a time when Mr. Laurins wife was alive; (2) relied on her illness to
    explain his delay in pursuing Mr. Laurin, and (3) acknowledged that the unit
    had not been rented since 2012, apart from a woman who stayed in the unit for
    about a year. The appellant then took no steps to correct his examination in
    discovery evidence.

[21]

The fact that the motion judge found the balance
    of the appellants evidence lacked credibility did not require him to reject
    admissions made by the appellant against his interest.

[22]

The motion judge was entitled to exercise discretion
    to use his enhanced fact-finding powers, to refuse to credit the timing offered
    by Ms. Lum, and to rely upon the appellants own admissions to conclude that
    the counterclaim was statute-barred.

C.

The VicaRious Liablity Claim

[23]

The appellant contends that, if the motion judge
    was wrong to find the counterclaim to be statute barred, the counterclaim
    should have been allowed to continue to trial because the motion judge erred in
    evaluating whether Mr. Laurin was the respondents agent when assisting the
    appellant in renting the condominium unit. The appellant argues that since Mr.
    Laurin was employed by the respondent, the motion judge should instead have
    applied the test in
Straus Estate v. Decaire
, 2012 ONCA 918, 300 OAC
    171, for assessing the vicarious liability of employees. He further argues that
    the motion judge should have applied the enhanced fact-finding powers conferred
    by r. 20.04(2.1) to assess whether a nexus existed between the wrongful acts of
    Mr. Laurin and the risk created by the respondent, his employer.

[24]

The premise on which the appellant pursues this
    ground of appeal is flawed, since even if the appellants vicarious liability
    argument were correct, the appeal relating to the counterclaim would have to be
    dismissed because the motion judge correctly determined that the limitation
    period had expired. In any event, we would dismiss this ground of appeal as
    well.

[25]

As the motion judge pointed out, the appellant
    led no evidence that Mr. Laurins employment duties as business manager
    extended to acting as a leasing agent for unit holders, or that the respondent
    was aware that Mr. Laurin performed this service for the appellants or anyone
    else. There was no evidentiary basis possible for a finding of vicarious
    liability, or to provoke the exercise of the motion judges enhanced
    fact-finding power. Quite simply, the appellant failed to show that there was a
    genuine issue requiring a trial relating to the counterclaim, even if the
    counterclaim had been timely commenced.

D.

The Lien and the Reasonableness Of the Legal
    Costs Claimed UNDER THE LIEN

[26]

In supplemental argument, the appellant appears
    to take issue with inclusion in the lien of legal costs associated with the
    appellants counterclaim, the reasonableness of those legal fees, and the
    interest rate being claimed. It is not at all clear from the formal order,
    particularly when read in concert with the costs endorsement of April 6, 2020, that
    the motion judge included the legal costs relating to the counterclaim in the
    lien amount. He also remained seized of any further issues relating to the
    proper accounting of amounts owing. More importantly, neither of these issues is
    properly before us. They were not raised in the notice of appeal, nor in the
    appellants factum. It is not in the interests of justice for us to consider
    these issues now.

CONCLUSION

[27]

The appeal of the summary judgment granting the
    respondents claim and dismissing the appellants counterclaim is dismissed.

[28]

If costs in this appeal are being claimed, the
    respondents costs submissions, confined to 3 pages plus a supporting bill of
    costs, shall be served and filed by May 1, 2020. The appellants costs
    submissions, also confined to 3 pages, shall be served and filed by May 8, 2020.
    In the event the appellant is seeking costs, a supporting bill of costs may be
    appended.

[29]

The service and filing of the costs submissions may
    be accomplished by a single email addressed jointly to the opposing party and to
    the court, with relevant attachments. No further proof of service is required.

David M. Paciocco J.A.

B. Zarnett J.A.

Thorburn J.A.


