Cunningham v. Front of Yonge, (2004) 190 O.A.C. 308 (CA)

• Judge: Weiler, Rosenberg and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 18, 2004
• Jurisdiction: Ontario
• Citations: (2004), 190 O.A.C. 308 (CA)

Cunningham v. Front of Yonge (2004), 190 O.A.C. 308 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. OC.037

Bernard Cunningham and Loretta Cunningham (applicants/respondents in appeal) v. The Corporation of The Township of Front of Yonge, Corey Roth, Elisabeth Roth, Johanna Mallette and Robert Mallette (respondents/appellants in appeal)

(C40818; C40849)

Indexed As: Cunningham v. Front of Yonge (Township) et al.

Ontario Court of Appeal

Weiler, Rosenberg and Blair, JJ.A.

October 12, 2004.

Summary:

The Cunninghams did not pay their property taxes from 1999-2003. After following the requisite steps under the Municipal Tax Sales Act, including the giving of proper notices and a public tendering process, the Township of Front and Yonge agreed to sell the property to the appellants. After the public tenders were opened, but before the township had accepted the appellants' tender, the Cunninghams notified the township that they wished to pay the cancellation price of $13,833.34 in full. The township refused to cancel the sale, taking the position that once the tenders were opened the municipal treasurer had no discretion to file a certificate cancelling the tax sale pursuant to s. 12(6) of the Act. The Cunninghams applied for relief from forfeiture.

The Ontario Superior Court granted the application. The court cancelled the tax sale, prohibited the township from registering a tax deed in favour of the appellants and gave the Cunninghams 30 days to pay the monies owing to the township. The appellants appealed.

The Ontario Court of Appeal dismissed the appeal.

Real Property Tax - Topic 9063

Tax sales for delinquent taxes - Conditions precedent - Tax arrears certificate (incl. cancellation) - Section 12(6) of the Municipal Tax Sales Act provided that "Where, in the opinion of the treasurer: (a) it is not in the financial interests of the municipality to continue with proceedings under this Act; or (b) because of some neglect, error or omission, it is not practical or desirable to continue proceedings under this Act, the treasurer may register a cancellation certificate in the prescribed form, but this subsection does not apply so as to prevent the treasurer from registering a new tax arrears certificate and proceeding under this Act" - The Ontario Court of Appeal held that a municipal treasurer retained discretion under s. 12(6) to cancel a tax sale at any time up to the registration of the tax deed - The court also held that the words "some neglect, error or omission" in s. 12(6)(b) were not limited to conduct on the part of the municipality - Rather, the neglect, error or omission could be on the part of either the municipality or the taxpayer, but the conduct had to relate to the proceedings for the sale of the land themselves - See paragraphs 15 to 41.

Real Property Tax - Topic 9162

Tax sales for delinquent taxes - Redemption by owner or mortgagee - Time for - The Cunninghams did not pay their property taxes from 1999-2003 - After following the requisite steps under the Municipal Tax Sales Act, including the giving of proper notices and a public tendering process, the Township of Front and Yonge agreed to sell the property to the appellants - After the public tenders were opened, but before the township had accepted the appellants' tender, the Cunninghams notified the township that they wished to pay the cancellation price of $13,833.34 in full - The township refused to cancel the sale, taking the position that once the tenders were opened the municipal treasurer had no discretion to file a certificate cancelling the tax sale pursuant to s. 12(6) of the Act - The Cunninghams applied for relief from forfeiture - The application judge granted the application, cancelled the tax sale, prohibited the township from registering a tax deed in favour of the appellants, and gave the Cunninghams 30 days to pay the monies owing to the township - The Ontario Court of Appeal affirmed the decision - The treasurer's failure to exercise her discretion under s. 12(6) of the Act rendered the tax sale proceedings fatally flawed - See paragraphs 42 to 43.

Cases Noticed:

Glaves (Gordon) Holdings Ltd. v. Care Corp. of Canada Ltd. et al. (2000), 133 O.A.C. 111; 48 O.R.(3d) 737 (C.A.), refd to. [para. 20].

Morton v. Cowan (2003), 175 O.A.C. 9; 66 O.R.(3d) 321 (C.A.), refd to. [para. 22].

Bay Colony Ltd. et al. v. Wasaga Beach (Town) et al. (1997), 99 O.A.C. 317; 33 O.R.(3d) 637 (C.A.), refd to. [para. 25].

Zeitel and Henning v. Ellscheid et al., [1994] 2 S.C.R. 142; 165 N.R. 214; 71 O.A.C. 134, refd to. [para. 26].

Elliott v. Toronto (City) et al. (1999), 118 O.A.C. 362; 43 O.R.(3d) 392 (C.A.), consd. [para. 26].

Deverell v. Anson, Hindon and Minden (Township) et al. (1998), 110 O.A.C. 372 (C.A.), consd. [para. 26].

Inter-Fund Mortgage Corp. et al. v. Welland (City) et al., [2003] O.A.C. Uned. 152 (C.A.), refd to. [para. 37].

Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18, refd to. [para. 42].

Martinoff v. Canada et al., [1994] 2 F.C. 33; 165 N.R. 309 (F.C.A.), refd to. [para. 42].

Statutes Noticed:

Municipal Tax Sales Act, R.S.O. 1990, c. M-60, sect. 12(6) [para. 16].

Authors and Works Noticed:

Tansley, Municipal Sales Tax (September 1995), 105 Municipal World 3, p. 4 [para. 29].

Counsel:

Sean G. Foran, for the respondents;

Paull N. Leamen and Neville Johnston, for the appellant, Township;

Clint H. Culic, for the personal appellants.

This appeal was heard on May 18, 2004, before Weiler, Rosenberg and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of appeal was delivered by Blair, J.A., and was released on October 12, 2004.