CITATION: Chiarelli v. Toronto Standard Condominium Corporation No. 2339, 2026 ONSC 4571

COURT FILE NO.: CV-25-00739902-0000

DATE: 20260807

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LUCA CHIARELLI, JESSICA SAMARAS, PATRICIA MCLAUGHLIN

Applicant

– and –

TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2339

Respondent

Shawn Lev Pulver and Jackie Bartlett, for the Applicant

Antoni G. Casalinuovo, for the Respondent

HEARD: June 29, 2026

E. IACOBUCCI J.

REASONS FOR DECISION

OVERVIEW

[1] This application asks for the discharge of a lien imposed by the respondent, Toronto Standard Condominium Corporation No. 2339 (“2339”), on a condominium unit owned by the applicants, Luca Chiarelli, Jessica Samaras, and Patricia McLaughlin.

[2] The lien concerns 2339’s claims that the applicants are in arrears in respect of common expenses. The claimed arrears in common expenses include legal costs associated with 2339’s efforts to enforce a prohibition in its Declaration concerning short-term rentals, as well as a fire safety expense that has not been paid.

[3] I find that the lien should be discharged. The legal costs cannot be added to common expenses without a court order, and 2339 gave the applicants misleading notice about the implications of the fire safety expense for the lien.

[4] The applicants also submit that 2339 acted oppressively towards them. I dismiss this claim.

FACTS

[5] The applicants own a condominium unit at 140 Broadview Ave. in Toronto. They signed a pre-authorized payment form to cover their monthly common expenses in April 2022, a month after they purchased the condominium.

[6] The respondent 2339 operates the condominium in which the unit is located. It imposed a lien on the unit in respect of two sets of chargebacks.

Legal expenses

[7] First, there is a chargeback relating to the applicants’ use of their unit as a short-term rental contrary to 2339’s Declaration, which among other things prohibits any lease term shorter than three months. 2339 engaged lawyers to send a letter to the applicants on September 29, 2023 about short-term rentals, and the cost of doing so was charged back to the applicants.

[8] In the face of indications that the unit was continuing to be offered for short-term rentals in violation of the Declaration, 2339 engaged lawyers to send another letter to the applicants on September 16, 2024. The cost of this second letter was also charged back to the applicants.

[9] While the applicants acknowledge violating the rules against short-term rentals, there is a dispute whether the unit continued to be used as a short-term rental when the second letter was sent. The applicants now claim that a family member resides in the unit. 2339 provides evidence that the unit continued to be advertised as a rental unit into 2025, and that when the applicants listed the unit for sale in 2024, they advertised it as ideal for short-term rentals.

[10] It is unnecessary to resolve this factual dispute about the short-term rental to answer the lien issues. Even if the applicants were violating the Declaration, the critical question is whether 2339 had the authority to add compliance and enforcement costs to common expenses such that a lien could be imposed. As I explain below, I conclude that they did not because of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), s. 134(5).

Fire safety expenses

[11] The second basis for the lien is a fire safety chargeback. In 2022, 2339’s contractor determined during a fire inspection that the smoke/carbon dioxide detector located within the unit required replacement. The contractor invoiced 2339 on May 8, 2023. On June 19, 2023, 2339 sent notice of the chargeback to the applicants. 2339 subsequently sent multiple notices to the applicants that this payment was in arrears. The amount of the invoice was $99.95.

[12] There is a dispute about the role of the fire expense in supporting the imposition of a lien because of inadequate notice to the applicants.

Notice of Lien

[13] On December 19, 2024, 2339 sent via their lawyers a cover letter enclosing a Notice of Lien. The cover letter and Notice of Lien caused confusion, especially in relation to the fire safety charge. The Notice of Lien itself identified unpaid common expenses of $874.06, plus interest, legal fees and administrative costs incurred to collect the unpaid common expenses. $874.06 is the amount charged by 2339’s lawyers for the second demand letter. The cover letter, however, referred to arrears relating to the costs of the first and second demand letter, as well as a fire safety charge.

[14] A lien was registered on December 31, 2024, securing a total amount of $3,634.62. 2339 sent a letter to the applicants advising that it had registered a lien on the basis of its earlier Notice of Lien: there was failure to indemnify 2339 for its legal expense of $874.06, plus interest, legal fees and administrative costs incurred to collect the unpaid common expenses and register the lien. The letter advised that there were further arrears, including in respect of a fire inspection, and that these arrears “have not been included in the lien registered on title to your property…” The letter advised that 2339 may seek to collect these further arrears in Small Claims Court.

[15] The applicants bring this application challenging the validity of the lien.

ISSUES

1. The applicants challenge the validity of the lien following precedent in Amlani v. York Condominium Corporation No. 473, 2020 ONSC 194, 314 A.C.W.S. (3d) 194. They submit that the legal expenses could not be added to common expenses and thus justify the lien. I accept this submission.

2. The applicants further challenge the lien on the basis that 2339 provided misleading notice about the fire safety charge. I accept this submission and find that the fire safety charge is not lienable as a consequence.

3. Finally, the applicants submit that registering the lien was oppressive. I do not accept this submission.

[16] I order the lien discharged.

RELEVANT PROVISIONS IN THE STATUTE AND DECLARATION

[17] Section 84 of the Condominium Act provides:

84(1) Subject to the other provisions of this Act, the owners shall contribute to the common expenses in the proportions specified in the declaration.

[18] Section 85 of the Act concerns the registration of a lien on unpaid expenses:

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. …

(2) The lien expires three months after the default that gave rise to the lien occurred unless the corporation within that time registers a certificate of lien in a form prescribed by the Minister.

[19] Section 134 of the Act concerns an application to court to require compliance with a condominium’s declaration:

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.

(3) On an application, the court may, subject to subsection (4),

(a) grant the order applied for;

(b) require the persons named in the order to pay,

(i) the damages incurred by the applicant as a result of the acts of non-compliance, and

(ii) the costs incurred by the applicant in obtaining the order; or

(c) grant such other relief as is fair and equitable in the circumstances.

(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.

[20] The applicants raise oppression. The relevant provision is s. 135 of the Act:

135 (1) An owner, a corporation, a declarant or a mortgagee of a unit may make an application to the Superior Court of Justice for an order under this section.

(2) On an application, if the court determines that the conduct of an owner, a corporation, a declarant or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant, it may make an order to rectify the matter.

[21] The Declaration of 2339 states at Article 2.2(a):

Each Owner shall pay to the Corporation his or her proportionate share of the common expenses and the assessment and collection of contributions toward common expenses may be regulated by the Board pursuant to the By-laws. In addition to the foregoing, any losses, costs or damages incurred by the Corporation by reason of a breach of any provision of this Declaration, or in any By-laws or Rules in force from time to time by any Owner, or by members of his or her family and/or their respective tenants, invitees or licensees shall be borne and paid for by such Owner and may be recovered by the Corporation against such Owner in the same manner as common expenses.

[22] Article 6.1 further provides:

Each owner shall indemnify and save harmless the Corporation from and against any loss, costs, damage, injury or liability whatsoever which the Corporation may suffer or incur resulting from or caused by an act or omission of such Owner, his family, guests, visitors or tenants to or with respect to the Common Elements and/or all other Units, including the breach of the Act, the Declaration, By-laws and Rules, save and except for any loss, costs, damages, injury or liability caused by an insured (as defined in any policy or policies of insurance) and insured against by the Corporation. All payments to be made by an Owner pursuant to this Article shall be deemed to be additional contributions toward common expenses payable by such Owner and shall be recoverable as such.

[23] Finally, Art. 4.8 of the Declaration prohibits leases shorter than three months and provides that no owner may have more than four tenancies in a twelve-month period.

ANALYSIS

[24] 2339 claims two bases for the lien. First, it claims unpaid common expenses in respect of legal fees relating to compliance and enforcement of its Declaration. Second, it claims unpaid common expenses in respect of a fire safety charge. I conclude that neither basis justifies the lien. I consider each in turn.

Legal fees

The reasoning in Amlani

[25] In Amlani v. York Condominium Corporation No. 473, 2020 ONSC 194, this court invalidated a lien based on unpaid enforcement costs relating to a condominium’s declaration that banned smoking. The court accepted that the purpose of allocating common expenses is to ensure that owners pay their fair share of the condominium’s costs, including costs that the owner themselves create. The court nevertheless rejected the submission that legal costs relating to enforcing the declaration were common expenses subject to a lien:

31In determining which interpretation I adopt, the Corporation submits that I must keep in mind the overall purpose of those sections and of the Act which is to place the financial burden created by the conduct of any one unit holder on that particular unitholder rather than on the Corporation. If the financial burden is placed on the Corporation, it is effectively placed on innocent unitholders who must pay for the Corporation’s expenses by way of common expenses or special assessments: Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc., 2005 CanLII 13778 (ON CA), [2005] O.J. No 1604 at para. 40.

32I accept that this is part of the overall scheme of the Act but am nevertheless of the view that the expenses the Corporation claims are not common expenses under s. 85 but are expenses that relate to “enforcing compliance.” It is clear that s.134 costs cannot be added to the common expenses of the Amlanis’ apartment without an order under section 134 (5): Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc., 2005 CanLII 13778 (ON CA), [2005] O.J. No 1604 at para. 35 (C.A.). Here, however, the Corporation seeks to shift the financial burden from itself to Mr. Amlani without a court order authorizing it to do so.

33Common expenses, in their most traditional form, apply to the monthly fees each unit owner pays for utilities and the general upkeep of the condominium project. If a unit owner defaults on those monthly obligations, the default can be liened and the unit can be sold to enforce the lien. Section 84(1) of the Act underscores this interpretation when it provides that a unitholder shall pay common expenses in the proportions specified in the declaration.

34It 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. [Emphasis added.]

[26] In the present case, 2339 claims to have the right, as a consequence of the Declaration, to treat legal costs associated with enforcement and compliance as common expenses. This squarely engages the court’s concern about unfettered authority in Amlani.

[27] Amlani also considered the particulars of the corporation’s declaration, determining that it did not justify the lien:

43The Corporation argues the Declaration contains an indemnity in article 11 which allows it to act as it has. The indemnity provides:

“Each owner shall indemnify and save harmless the Corporation from and against any loss, cost, damage, injury or liability whatsoever which the Corporation may suffer or incur resulting from or caused by an act or omission of such owner, … to or with respect to the common elements and/or all other units except for any loss, costs, damages, injury or liability caused by an insured (as defined in any policy or policies of Insurance) and insured against by the Corporation. [Emphasis in Amlani.]

All payments pursuant to this clause are deemed to be additional contributions toward the common expenses and recoverable as such.”

44The Corporation interprets the indemnity as meaning that the legal expenses of its lawyers are lienable under section 85 (1) of the Act and relies on London Condominium Corporation No. 13 v. Awaraji, 2007 ONCA 154 for the proposition that a court should not interfere with a condominium corporation’s interpretation of its declaration unless it is unreasonable.

45In my view, the Corporation’s interpretation of the indemnity is unreasonable.

46The indemnity applies only with respect to costs the Corporation incurs arising out of acts by owners “to or with respect to the common elements and/or all other units.” There was no act of Mr. Amlani to the common elements or to all other units. Moreover, the costs the Corporation incurred after Mr. Amlani left his unit could not possibly arise out of acts by Mr. Amlani to the common elements or all other units because he was out of the building and was not engaging in any acts with respect to the common elements or otherwise. 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. Here again it is relevant to note that the legal accounts for which the corporation claims indemnity describe the services as relating to the “enforcement of the Corporation’s Declaration and Rules” and not as relating to the protection of any common elements. [Emphasis added.]

[28] I pause to emphasize that Amlani rejected the condominium’s authority for two distinct reasons. First, the court did not interpret the declaration in that case as permitting the condominium to add enforcement costs to common expenses. Second, the court concluded that an interpretation of a declaration that would allow enforcement costs to be added to common expenses would contravene s. 134(5). I return to these two distinct reasons below.

[29] The Divisional Court in Amlani v. YYC 473, 2020 ONSC 5090, 322 A.C.W.S. (3d) 338 (Div. Ct.) upheld this analysis, stating:

26The appellant argues that its indemnity provision allows it to simply charge back any and all costs incurred in its attempt to secure compliance, without the requirement to first obtain a compliance order.

27Section 7(5) of the Act provides that a declaration cannot be inconsistent with the Act. The application judge found, the interpretation of Article XI advanced by the Corporation contravenes s. 134 (5) of the Act because the costs it claimed related to compliance and enforcement costs and were not embodied in a court order. An interpretation that contravenes a statutory provision, he found, is, by definition, unreasonable. The legal accounts for which the corporation claimed indemnity described the services as relating to the “enforcement of the Corporation’s Declaration and Rules” and not as relating to the protection of any common elements.

28In the circumstances, there are no palpable and overriding errors to justify overturning the finding that the appellant could not rely upon its indemnity provision to charge Mr. Almani [sic] with the legal fees it was seeking.

Application of Amlani to this case

The Declaration

[30] 2339 stresses that there is a sharp distinction between the Declaration in this case and that in Amlani. The declaration in Amlani concerned indemnification of expenses that arise as a result of an act or omission “to or with respect to common elements and/or all other units…” The condominium corporation argued that costs of enforcing the non-smoking rules fell within the ambit of this indemnification provision. The court, accepting that judicial intervention would only be appropriate in the face of an unreasonable decision of the condo board, concluded that the board’s interpretation was unreasonable. It reached this decision in part because the smoking rules did not concern the common elements or all other units.

[31] In the present case, in contrast, the Declaration in Art. 6.1 includes in a unit’s common expenses costs incurred to enforce the Declaration and/or by-laws. Art. 2.2 includes in a unit’s common expenses costs incurred as the result of a breach by the unit-holders or their associates of the Declaration.

The Act

[32] While there is a distinction between the declarations in Amlani and in the present case, there is the additional, statutory basis for the outcome in Amlani that in my view renders the legal expenses in this case not lienable without a court order.

[33] Section 7(5) forbids a declaration from being inconsistent with the Act. The question arises whether Arts. 6.1 or 2.2 are consistent with s. 134(5) of the Act to the extent that they allow 2339 to allocate legal expenses associated with enforcing compliance to common expenses and thus subject to a lien.

[34] It is possible to read Arts. 2.2 and 6.1 as not necessarily being in direct conflict with s. 134(5): while s. 134(5) grants the court the authority to make an order against a unitholder for the corporation’s costs of compliance or enforcement, Arts. 2.2 and 6.1 establish authority on the part of 2339 itself to add the costs of compliance or enforcement to a unit’s common expenses and make them subject to a lien. The court’s authority to add costs to common expenses in the statute in s.134 is not strictly speaking mutually exclusive with the corporation’s authority to do so in the declaration.

[35] While the provisions may not be mutually exclusive, in my view the better reading is that Arts. 2.2 and 6.1 are inconsistent with s. 134(5) in respect of legal costs associated with compliance and enforcement.

[36] If a corporation could rely on its declaration to add to a unit’s common expenses the legal costs associated with compliance, and register a lien accordingly, s. 134(5) would be unnecessary: a court order is not required if the corporation’s declaration could authorize the corporation on its own to add these costs to a unit’s common expenses and make them lienable.

[37] For s. 134(5) to have significance, the better reading is that a court order is required to allocate legal costs to a unit’s common expenses.

[38] Moreover, as noted by the Divisional Court in Amlani, there are other provisions in the Act that specifically authorize the corporation to levy common expenses on a unit without a court order. Amlani stated:

35I 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.

[39] There is no similar provision in respect of the costs of compliance or enforcement. Instead, these costs are addressed by s. 134(5), which requires a court order.

[40] 2339 seeks to distinguish Amlani given the differing declarations in that case and this case. The Declaration in the present case is much clearer about the responsibility of the unit holder to compensate for legal costs from breaches of the Declaration than the declaration in Amlani.

[41] In my view, however, Amlani stands for the proposition that a declaration conflicts with s. 134(5) to the extent that it purports to add legal costs associated with enforcement and compliance to a unit’s common expenses. The critical two sentences are found in para. 46 of this court’s decision, emphasized above:

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.

[42] This passage states clearly that an “interpretation” of a declaration that includes claims for costs of compliance and enforcement without a court order “contravenes” s. 134(5). In the present case, it is not necessarily a contestable “interpretation” of the Declaration that would create a claim for costs of enforcement and compliance without a court order, but arguably the clear wording of the Declaration itself. This is not, however, significant to understanding the implications of Amlani for this case.

[43] Whether it is an “interpretation” of the declaration, or the plain meaning of the declaration, Amlani stands for the proposition that a declaration that purports to add legal costs associated with enforcement and compliance to a unit’s common expenses without a court order “contravenes” s. 134(5) and is thus unenforceable.

[44] Peel Standard Condominium Corp. No. 779 v. Rahman, 2023 ONSC 3758, 2023 A.C.W.S. 3040 (Div. Ct.), a decision of the Divisional Court on appeal from the Condominium Appeal Tribunal, also supports the conclusion that a court order is required to add enforcement costs to common expenses, and thus render them potentially subject to a lien. The court stated:

36The 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…

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

[45] Rahman rejects the notion that the declaration may confer the right on the condominium corporation to add legal costs to common expenses without a court order.

[46] The applicants made reference to several other cases in the Small Claims Court and the Condominium Appeals Tribunal that found that compliance and enforcement costs cannot be added to a unit’s common expenses, and thus subject to a lien, without a court order.

[47] For example, Merrifield v. Russel et al., 2025 CanLII 6237 (Ont. S.C.) considered a condominium board’s authority to add enforcement costs to common expenses. After thoughtful analysis, the Small Claims Court concluded that the condominium corporation could not do so without a court order pursuant to s. 134(5).

[48] I am not bound by Small Claims Court and tribunal decisions, but they may provide persuasive authority. I note that there were a number of cases in these other bodies citing Amlani for the proposition that s. 134(5) requires a court order to add enforcement and compliance costs to common expenses. The case law from this court and other adjudicative bodies supports my reading of the statute and Amlani.

[49] In summary, whatever the content of its Declaration, 2339’s legal costs in connection with its efforts to ensure compliance with its Declaration cannot be added to common expenses without a court order pursuant to s. 134(5). Such costs cannot, therefore, be subject to a lien pursuant to s. 85(1).

Fire safety

[50] 2339 seeks to justify its lien on the unit in part on the basis of a fire safety chargeback of $99.95 associated with replacing a carbon dioxide/smoke detector. 2339 contends that even if the costs of enforcement do not justify the lien, the fire charge does; therefore, the lien at this stage is valid and any dispute over the amount of the lien can be resolved following the issuance of a Notice of Sale.

[51] In my view, the lien for the fire safety chargeback should be discharged because of 2339’s defective notice about it to the applicants.

[52] 2339’s communication with the applicants about the lien was confusing and misleading in multiple respects.

[53] First, the Notice of Lien included a cover letter that claimed legal costs relating to the first and second demand letters, as well as the fire safety charge. The Notice of Lien itself, however, gave notice of an unpaid common expense that matched precisely the legal costs relating to the second demand letter alone.

[54] Second, 2339 sent another letter to the applicants on December 31, 2024, advising that it had registered a lien on the unit. The letter indicated that the lien secured an amount of $3,634.62, of which the original common expense arrears was $874.06, matching the precise amount paid for the second demand letter, not the first demand letter or the fire safety charge.

[55] Third, the December 31, 2024 letter stated that there were arrears associated with the fire safety charge. It further stated explicitly, however, that these arrears have not been included in the lien, and 2339 may instead seek recovery of the expense in Small Claims Court.

[56] The letters and Notice of Lien are, at best, confusing.

[57] The December 31, 2024, letter, however, stated clearly and plainly that the fire safety charge was not subject to the lien. It is inappropriate for 2339 now to claim that the fire safety charge alone justifies the lien even if the legal expenses cannot.

[58] 2339 relies on York Condominium Corporation No. 482 v. Christiansen (2003), 2003 CanLII 11152 (ON SC), 64 O.R. (3d) 65, 120 A.C.W.S. (3d) 322(Ont. S.C.) for several propositions, including in respect of the notice that ought to be given to unitholders about a lien. Christiansen held that there is no need for a Notice of Lien, or a Certificate of Lien, to be perfect. Rather, perfection can be sought at the Notice of Sale stage.

[59] In my view, Christiansen does not stand for the proposition that misleading notice about the basis for a lien is acceptable. The court in Christiansen observed that the unitholders were aware of the arrears in question, and possible imperfections with the certificate were not prejudicial. A relevant excerpt is the following:

47It was submitted by the moving parties that these liens should be treated in the same fashion as Notices of Sale under Power of Sale in the Mortgages Act; that is strict compliance should be required. Both, it was said, are self-help remedies with preconditions established by the governing Act. Form 14, Notice of Lien to Owner, prescribed by Ontario Regulation 48/01 provides for the giving of full particulars. Therefore, in the absence of full particulars as to each unit, the notices of lien were invalid. But the evidence before me is that the Notices of Lien to Owner, Form 14, were actually in compliance with that Form being on a single unit basis. If anything was not in compliance, it was the Certificate which lumped the amounts owing by the several units of the same owner.

48The form of the Certificate of Lien is prescribed by Ontario Regulation 49/01, Form 6, and it has been followed by the corporation with the one problem that there are claims for lien over units which I have held are not lienable in the circumstances and the amounts are lumped together. There is nothing in the Form itself to confine it expressly to one unit. Assuming that there is a failure to include all relevant information called for by the Form, it must still be read together with the Notice to Owner which does give all the data. Even if strict compliance is required, the documents taken together fully comply.

49More fundamentally, the applicant responded that the entire analogy was wrong. The strict compliance of the Notice of Sale under the Mortgages Act, R.S.O. 1990, c. M.40 was imposed because it was the basic step in the process of actually selling the security; but the lien is not the equivalent step. The Act provides that the lien may be enforced "in the same manner as a mortgage", thus a Notice of Sale would issue at a later stage and the strict compliance rules would apply at that stage. Further, if the Notice of Sale is faulty, all that is lost to the mortgagee is the time to issue a new one. In the case of the lien, if it is set aside, the three months of lienable arrears must be recalculated and some lien rights will be forever gone. This is a serious penalty for want of precise compliance at so early a stage, and should not be read in to the Act unless it is necessary for its operation, which is not the case.

50In my view this is a sensible analysis. Importing the strict compliance requirement at the Certificate of Lien stage, when it will have to be met at a later stage if sale is actually contemplated, is adding an extra hurdle for the condominium administrator and giving defaulting owners a protection that they do not need since they will be sent a Notice of Lien with those particulars. Owners will normally know perfectly well that they are in arrears and how much and if they don't, the information is readily available from the corporation office. At this stage some showing of prejudice should be a requirement for setting aside a certificate of lien for non-compliance with the requirements in s. 85 and the Forms at the instance of an owner. No prejudice has been shown.

[60] This case differs from Christiansen in significant ways.

[61] The court in Christiansen was satisfied that the Notices of Lien informed the unitholders appropriately. In the present case, the amount at stake in the Notice of Lien did not match the cover letter setting out the arrears, creating confusion.

[62] The court in Christiansen concluded that all the documents provided to the unitholders taken together fully complied with the notice requirements. In the present case, the documents all taken together indicate that the fire safety charge was not subject to the lien.

[63] There was no communication in Christiansen that a specific expense (the fire safety charge in this case) was not subject to the lien, only to have the condominium corporation later claim that the expense was subject to the lien.

[64] The court in Christiansen stated that owners will normally know perfectly well that they are in arrears and by how much. Again, in the present case, the applicants were told explicitly that the fire safety charge was not a basis for the lien, only to have 2339 reverse its position and now claim that it is the basis of the lien. Even if the applicants knew of the arrears in respect of the fire safety expense, they would not have known that 2339 would rely on it to justify the lien.

[65] 2339 submits that the standard governing its notice to the applicants of the lien is not that of perfection. I accept that. But I do not accept that the standard is sufficiently lax that a bald statement that a certain expense is not included in the lien is irrelevant when the corporation later seeks to rely on that very expense to justify the lien. In such circumstances, the risk of prejudice is clear. In the present case, for example, the applicants may have concluded that the only arrears in question related to the legal fees, that these fees are not lienable, and that therefore they need not pay off the arrears to discharge the lien. The communications from 2339 would not have allowed them to anticipate that 2339 would now seek to rely on the fire safety charge to justify the lien.

[66] It is not a standard of perfection that requires 2339 not to mislead the applicants about 2339’s claimed justification for the lien.

[67] Because of the fundamentally flawed notice concerning the $99.95 fire expense, the fire expense does not provide a justification for the lien.

OPPRESSION REMEDY

[68] The applicants invoke the oppression remedy, submitting that 2339 acted in a manner that was oppressive to, that unfairly prejudiced, and/or that unfairly disregarded the interests of the applicants. The foundation for these submissions is 2339’s willingness to pursue the lien without a sufficient and proper legal basis for doing so.

[69] In my view, a declaration of oppressive behaviour by 2339 and/or damages would be inappropriate in this case.

[70] Zaman v. Toronto Standard Condominium Corporation No. 1643, 2020 ONSC 1262, 2020 ONSC 1262 (CanLII), 12 R.P.R. (6th) 99, at para. 24 requires the court to “balance the objectively reasonable expectations of an applicant and the welfare of all owners and the condominium’s assets.” I am not satisfied that 2339 acted in a manner that upset this balance. In assessing whether an oppression remedy would be appropriate, the court must look to whether there has been a breach of the applicant’s reasonable expectations, and whether the conduct complained amounts to oppression, unfair prejudice or unfair disregard: Zaman at para. 25.

[71] The applicants have admitted to breaching the Declaration in respect of short-term rentals, and the evidence suggests that they have done so dozens of times. That 2339 took steps to ensure that they ceased to do so was not at all inappropriate. It surely falls within a unitholder’s reasonable expectations that the condominium would seek to ensure compliance with its declaration. As Zaman stated, a unitholder has a reasonable expectation that the corporation will seek to ensure compliance with the declaration vis-à-vis other unitholders:

27One must have regard to the context of condominium ownership, and the realities of living in a condominium complex. Owners of condominium units buy them knowing that the corporation has a Declaration, by-laws and rules that govern unit holders and their use and ownership of their units and the common elements. They are entitled to expect that the rules will be upheld and enforced; indeed, that obligation is specifically provided for in the Act: s. 17(3). Where a condominium corporation fails in this duty to enforce its governing documents, the conduct may be unfairly prejudicial to an owner and amount to oppression.

[72] Moreover, a unitholder who has breached a declaration, apparently repeatedly, is not in a good position to seek equitable relief pursuant to the oppression remedy.

[73] Finally, while I find that 2339 does not have the right under the Act to include legal costs of enforcement in common expenses without a court order, I do not find it improper for 2339 to have contended otherwise, especially given the wording of its Declaration. The notice about the fire safety charge was misleading, and the charge is not lienable as a consequence – the oppression remedy is unnecessary.

[74] I discharge the lien given s. 134(5) and inadequate notice. I do not order any additional remedy pursuant to s. 135 of the Act.

CONCLUSION

[75] 2339 claims two bases for the lien: unpaid common expenses in respect of legal costs; and unpaid common expenses in respect of fire safety. The legal expenses may not form the basis of a lien without a court order pursuant to s. 134(5) of the Act. The fire safety expenses may not form the basis of a lien given the fundamentally flawed nature of 2339’s notice. I order the lien discharged in its entirety.

[76] In the event that the parties cannot agree on costs, I ask for written submissions of no more than three double-spaced pages to be sent to Annamaria.tiberio@ontario.ca no more than thirty days from today.

[77] This case concerns a lien on an amount that is less than $4,000. It is troubling that, rather than finding alternative means of resolving the dispute, such as Small Claims Court, the parties litigated this matter at the Superior Court and incurred legal costs collectively that exceed $100,000. I will take this into account in considering a cost award.

E. Iacobucci J.

Date: August 07, 2026

2026 ONSC 4571