Simon's Megalomaniacal Legal Resources

Condominiums - Compliance Orders [s.134]

. York Region Standard Condominium Corporation No. 972 v. Lee

In York Region Standard Condominium Corporation No. 972 v. Lee (Ont CA, 2025) the Ontario Court of Appeal partly allowed a condo appeal, this from orders "to deliver possession of their unit to the respondent and the respondent was granted leave to issue a writ of possession in respect of the unit (unless the appellants discharged the lien within 60 days)":

[2] The underlying dispute related to the discovery of defective plumbing in the condominium and the remedial efforts undertaken by the respondent, which were resisted by the appellants, who refused the respondent’s entry to their unit for the purpose of addressing the defective plumbing. Litigation ensued, and the respondent prevailed at every stage, resulting in legal expenditures by the respondent and costs awards at the Superior Court and this court. Ultimately, in February of 2022, this led the respondent to register a lien on title to the unit in respect of these expenses. The respondent then commenced the action to enforce the lien, which was granted by the trial judge.

....

[22] Section 134(5) of the Condominium Act, 1998, S.O. 1998, c.19, provides:

If a corporation obtains an award of damages or costs in an order made against an owner or occupier of a unit, the damages or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses for the unit and the corporation may specify a time for payment by the owner of the unit.

[23] In light of this provision, this court has recognized the distinction between an “award of costs” between litigants ordered by a court and “additional actual costs” expended by a condominium corporation in obtaining a compliance order: Toronto Standard Condominium Corporation No. 1633 v. Baghai Development Limited, 2012 ONCA 417, 293 O.A.C. 123, at paras. 61-62; Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc. (2005), 2005 CanLII 13778 (ON CA), 253 D.L.R. (4th) 656 (Ont. C.A.), at para. 8. In the usual course, it would be open to a condominium corporation to add its actual, reasonable costs, in addition to a court ordered award of costs, to the common expenses attributable to a unit pursuant to s. 134, or as in this case, to a lien based on those expenses.

[24] In this case, however, the panel of this court awarding costs turned its mind not only to an appropriate award of costs in the appeal, but also to the amount appropriate to add to the condominium corporation’s common expenses: see York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914. The panel, at para. 17, stated:

In this court, the Corporation seeks costs of about $9,000. It is unusual for this court to award costs for an appeal that exceed the costs of the proceeding leading to the judgment under appeal. We see no reason to exceed the application judge’s award of costs, and therefore fix costs before this court in the amount of $4,500, all-inclusive, and order that this amount be added to the common expenses attributable to the owners’ unit. [Emphasis added.]

[25] In these circumstances, in our view, it was not open to the respondent to seek to add its full costs of $9,089.35 before the assessment officer, nor was it open to the trial judge to include this additional amount in the calculation of the lien. Rather, the fixed amount attributable both to the “costs” and “additional actual costs” relating to the appeal of Brown J.’s decision was $4,500. As a result, the difference between these two amounts (i.e., $9,089.35-$4,500), $4,589.35, was improperly added to the lien and must now be removed (with the corresponding removal of any applicable interest).

[26] We acknowledge both that the appellants did not raise this specific error as a ground of appeal, nor was this specific argument made before the trial judge. We also stress that this clarification and the correction of the error in the calculation of the lien has no bearing on the validity or enforceability of the lien, as correctly found by the trial judge.

Conclusion and disposition

[27] The trial judge observed that the appellants, who were self-represented, regrettably failed to appreciate the underlying basis for the lien, and more broadly, failed to understand and adhere to the rules and practices of litigation, requiring the expenditure of legal fees by the respondent, and resulting in a series of costs awards. These litigation costs, in turn, formed the basis for the lien. The respondent was entitled to enforce the lien and the trial judge committed no error in issuing an order to do so, subject only to the correction to the calculation of the lien set out above.

. Peel Standard Condominium Corp. No. 779 v Rahman

In Peel Standard Condominium Corp. No. 779 v Rahman (Div Court, 2023) the Divisional Court considered a condo corporation appeal [under Condominium Act, 1998, s.1.46] from a decision of the Condominium Appeal Tribunal, here where the trbunal ordered that the respondent was "entitled to park in designated accessible parking spaces located outside the appellant’s building, and awarding ancillary relief (2021 ONCAT 13)". In these quotes the court considers s.134 compliance orders:

Issue 5: Application of the Amlani Decision

[36] The Tribunal considered Amlani v. York Condominium Corporation No. 473, 2020 ONSC 5090 (Div. Ct.), and determined that it did not apply to the circumstances of this case. I agree with the Tribunal’s analysis of this point. At paragraphs 44 and 45 of the Decision, the Tribunal quotes from Amlani as follows:

The Amlani case deals with the interpretation of an indemnification clause and the operation of section 134 of the Act. However, the case does not stand for the proposition that, through deft wording of an indemnification clause, a condominium corporation can deprive an owner of his or her day in court as provided for in subsection 134(5) of the Act. In fact, the Court says, at paragraph 34,

It is one thing to allow the corporation to enforce, by way of lien, common expenses that are applicable to all unit holders and that a majority of unitholders have approved. It is entirely another to allow a condominium corporation the unfettered, unilateral right to impose whatever costs it wants on a unitholder, refer to them as common expenses and thereby acquire the right to sell the unitholder’s apartment.

Another way of considering the matter is to determine if PSCC779’s interpretation of its indemnification clauses is reasonable. Here again, reference may be had to the Amlani case, where the Court wrote, at paragraph 46:

Finally, the interpretation the Corporation advances contravenes section 134(5) of the Act because the costs it claims related to compliance and enforcement costs without being embodied in a court order. An interpretation that contravenes a statutory provision is, by definition, unreasonable….

[37] I see no error in the Tribunal’s interpretation and application of principles stated in Amlani.