Philip Brearton

The condominium corporation appealed an order invalidating a lien registered against the respondents' unit for legal fees incurred in seeking compliance with a smoking restriction.

The Divisional Court dismissed the appeal, upholding the application judge's findings that the corporation could not use a section 85 lien to collect legal fees for a section 134 compliance matter without a court order.

The court also upheld findings that the corporation's conduct was oppressive, that it failed to negotiate in good faith, and that the smoking did not constitute a nuisance.

The applicants sought to restrain the sale of their condominium unit, which the respondent corporation purported to lien under s. 85 of the Condominium Act, 1998, for compliance and enforcement expenses.

The applicants also claimed damages for oppression.

The court found the lien invalid as the expenses fell under s. 134, requiring a court order, which was absent.

The court further found the corporation acted oppressively by refusing good faith negotiation, imposing an invalid lien, and attempting to sell the unit, awarding the applicants $9,679.75 in damages.

The court also set aside the corporation's decision not to grandfather the applicants' unit under a new non-smoking rule.