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Condominium - Liens. Metropolitan Toronto Condominium Corporation No. 1067 v. 1388020 Ontario Corp.
In Metropolitan Toronto Condominium Corporation No. 1067 v. 1388020 Ontario Corp. (Ont CA, 2025) the Ontario Court of Appeal partially allowed a defendant's appeal, here brought against "an order granting summary judgment in MTCC 1067’s favour in an action over alleged condominium common expense arrears".
Here the court considered a condominium lien issue:3. Did the motion judge err by expanding the condominium lien to include the unsecured common expense arrears?
[22] BSA’s final ground of appeal challenges the motion judge’s decision to order “that the Unsecured Common Expenses be secured by the Condominium Lien”.
[23] Section 85(1) of the Act provides:If an owner defaults in the obligation to contribute to the common expenses payable for the owner’s unit, the corporation has a lien against the owner’s unit and its appurtenant common interest for the unpaid amount together with all interest owing and all reasonable legal costs and reasonable expenses incurred by the corporation in connection with the collection or attempted collection of the unpaid amount. [24] Section 85(2) further states that liens under s. 85(1) expire after three months unless a certificate of lien is properly registered by the condominium corporation. Once a certificate of lien is registered, it covers “the amount owing under all of the corporation’s liens against the owner’s unit that have not expired at the time of registration of the certificate”, as well as the amounts of any future defaults, plus interest, and reasonable legal costs and reasonable expenses: s. 85(3).
[25] Section 86(1) of the Act gives registered liens “priority over every registered and unregistered encumbrance even though the encumbrance existed before the lien arose”, with the exception of the claims listed in ss. 86(1)(a) to (c).
[26] In this case, MTCC 1067 did not register its certificate of lien on BSA’s units until May 16, 2024. Accordingly, pursuant to ss. 85(2) and (3), its registered certificate of lien only covered BSA’s common expense arrears from February 16, 2024 onwards.
[27] The motion judge concluded that she could nevertheless expand MTCC 1067’s lien to cover the unsecured common expense arrears by making an order under the oppression remedy provisions in ss. 135 and 136 of the Act. She explained that BSA’s failure to pay its share of the common expenses “amounts to unfair prejudice and unfair disregard of the interests of MTCC 1067 and the other unit owners”, and concluded:Sections 135 and 136 of the Act give the court broad remedial jurisdiction to make any order the judge deems proper. The courts’ power to fashion a remedy has been described as “awesome”: Irving Investments Ltd. v. York Condominium Corp. No. 21, 2022 ONSC 5967, at para. 30, citing McKinstry v. York Condominium Corp. #472 (2003), 2003 CanLII 22436 (ON SC), 68 O.R. (3d) 557, at para. 33. In order to ensure that MTCC 1067 can recover the Unsecured Common Expenses, and to ensure this burden is not borne by the other owners, I order that the Unsecured Common Expenses be secured by the Condominium Lien. [28] The oppression remedy “is equitable in nature and seeks to ensure what is ‘just and equitable’”: Noguera v. Muskoka Condominium Corporation No. 22, 2020 ONCA 46, 10 R.P.R. (6th) 1, at para. 18. The question of “[w]hat is just and equitable is judged by the reasonable expectations of the stakeholders in the context and in regard to the relationships at play”: BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, [2008] 3 S.C.R. 560, at para. 59.
[29] In this case, the motion judge was also granting MTCC 1067 vacant possession of BSA’s units so it could sell them under power of sale. In this context, the practical effect of her order securing MTCC 1067’s unsecured judgment debt under its condominium lien was not to balance the equities between MTCC 1067 and BSA, but to give MTCC 1067 a priority claim over the sale proceeds that would rank ahead of any claims that might be advanced by creditors other than those listed in ss. 86(1)(a) to (c). In our view, it was not appropriate for the motion judge to use her oppression remedy powers to make an order that potentially prejudiced third parties, some of whom may have relied on the clear statutory limits on the condominium lien that MTCC 1067 had registered on title: see Toronto Standard Condominium Corporation No. 1908 v. Stefco Plumbing & Mechanical Contracting Inc., 2014 ONCA 696, 377 D.L.R. (4th) 369, at para 48. Using ss. 135 and 136 to revive expired lien rights also arguably undermines the internal coherence of the statutory scheme: Stefco, at para. 46.
[30] We would accordingly allow the appeal on this ground and would set aside the motion judge’s order directing that the entire amount of the judgment, plus prejudgment and postjudgment interest and costs, were secured by the registered condominium lien. While the amount of the judgment awarded in para. 1 of the motion judge’s order remains unchanged, the order is varied to direct that only $110,883.29, plus prejudgment and postjudgment interest on this amount, is secured by the condominium lien. . 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.
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[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. . Amlani v. YYC 473
In Amlani v. YYC 473 (Div Ct, 2020) the Divisional Court considered whether a condo lien could be registered for compliance and enforcement without a s.134 Compliance Order from the court:Validity of the Corporation’s Lien
[9] Section 85 of the Act allows for the automatic registration of a lien in respect of common expenses. Section 134 of the Act provides that expenses in respect of compliance and enforcement can only be the subject of a lien if the Corporation has obtained a compliance order from the Court. The application judge found that the expenses at issue were not common expenses but fell under s. 134 of the Act. Since there was no Court order authorizing a lien for those expenses, he found that the lien was invalid and must be discharged.
[10] The Appellant argues that the application judge misapprehended the meaning and inter-relationship of these sections and disregarded the definition of “common expense” in the Act, which lead him to the wrong conclusion.
[11] Section 85 of the Act provides:85 (1) If an owner defaults in the obligation to contribute to the common expenses payable for the owner’s unit, the corporation has a lien against the owner’s unit and its appurtenant common interest for the unpaid amount together with all interest owing and all reasonable legal costs and reasonable expenses incurred by the corporation in connection with the collection or attempted collection of the unpaid amount. [Emphasis added] [12] Section 134 of the Act provides, in relevant part:134 (1) Subject to subsection (2), an owner, an occupier of a proposed unit, a corporation, a declarant, a lessor of a leasehold condominium corporation or a mortgagee of a unit may make an application to the Superior Court of Justice for an order enforcing compliance with any provision of this Act, the declaration, the by-laws, the rules or an agreement between two or more corporations for the mutual use, provision or maintenance or the cost-sharing of facilities or services of any of the parties to the agreement.
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(5) 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. [Emphasis added] [13] “Common expenses” are defined to mean “the expenses related to the performance of the objects and duties of a corporation and all expenses specified as common expenses in this Act, the regulations or in a declaration”.
[14] The essential reasoning of the application judge on this point appears in paras. 34 and 35 of his decision:[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.
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[35] I am strengthened in this view by other provisions in the Act that specifically allow a condominium corporation to add certain types of costs unique to a single owner to the common expenses of the particular unit holder without a court order. By way of example, sections 92(1) and (4) provide that a corporation can carry out certain repairs if an owner fails to do so and can add the cost of such repairs to the owner’s common expenses. In a similar vein, section 105(2) provides that if an owner causes damage, the lesser of the cost of repair or the corporation’s insurance deductible may added to the owner’s common expenses. Legal fees and enforcement costs do not fall into these categories. [15] I can find no error in the application judge’s interpretation of these provisions of the Act. His interpretation is correct. There are numerous sections allowing condominium corporations to charge back expenses to an owner and to have a lien if the owner defaults, without the requirement of an order. However, as expressly provided, s. 134 is not one of them.
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