Mullen v. Flin Flon (City) et al., (2000) 153 Man.R.(2d) 44 (CA)

• Judge: Philp, Kroft and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 04, 2000
• Jurisdiction: Manitoba
• Citations: (2000), 153 Man.R.(2d) 44 (CA);2000 MBCA 104

Mullen v. Flin Flon (2000), 153 Man.R.(2d) 44 (CA);

    238 W.A.C. 44

MLB headnote and full text

Temp. Cite: [2000] Man.R.(2d) TBEd. DE.015

Preston Mullen (plaintiff/respondent) v. The City of Flin Flon (defendant/defendant by counterclaim/appellant) and 3907741 Manitoba Ltd. (defendant/plaintiff by counterclaim/respondent)

(AI 00-30-04456; 2000 MBCA 104)

Indexed As: Mullen v. Flin Flon (City) et al.

Manitoba Court of Appeal

Philp, Kroft and Monnin, JJ.A.

November 30, 2000.

Summary:

Mullen's Flin Flon property, assessed at $32,200, was in tax arrears of $105.15. The City of Flin Flon sold the property at a public tax sale auction. Two City councillors purchased the property through their cor­poration for $2,500. Mullen commenced an action to set aside the tax sale. The City moved for the determination of whether it had satisfied the requirements of s. 367 of the Municipal Act by sending the notice of tax sale by registered mail to Mullen at the address shown on the most recent tax notice issued respecting the property. The notice had been returned to the City by Canada Post with the caption "Moved/Unknown" stamped on the envelope.

The Manitoba Court of Queen's Bench, in a decision reported at 143 M.R.(2d) 266, held that the City had not satisfied the re­quirements of s. 367 of the Municipal Act. The City appealed.

The Manitoba Court of Appeal, Philp, J.A., dissenting, allowed the appeal.

Equity - Topic 1063

Equitable relief - Relief from forfeiture - Jurisdiction - Mullen's property, assessed at $32,200, was in tax arrears of $105.15 - The City sent Mullen a notice of tax sale by registered mail at the address shown on the most recent tax notice issued respecting the property - Canada Post returned the notice with the caption "Moved/Unknown" stamped on the envelope - The City sold the property at a public tax sale auction - Two City councillors purchased the proper­ty through their corporation for $2,500 - The Manitoba Court of Appeal held that the notice met the requirements of the Municipal Act - Further, Mullen could not rely on s. 35 of the Queen's Bench Act for relief against forfeiture because s. 35 could not be invoked in the case of a statutory scheme (eg., the tax sale provisions in the Municipal Act) - See paragraphs 14 to 15.

Equity - Topic 1066

Equitable relief - Relief from forfeiture - Penalties - Statutory - [See Equity - Topic 1063 ].

Real Property Tax - Topic 9068

Tax sales for delinquent taxes - Conditions precedent - Notice to owner and other interested parties - Mullen's property, assessed at $32,200, was in tax arrears of $105.15 - The City sent Mullen a notice of tax sale by registered mail at the address shown on the most recent tax notice issued respecting the property - Canada Post returned the notice with the caption "Moved/Unknown" stamped on the en­velope - The City sold the property at a public tax sale auction - Mullen com­menced an action to set aside the sale - The Manitoba Court of Appeal held that the notice sent by the City met the re­quirements of s. 367(1) of the Municipal Act - See paragraphs 1 to 17.

Cases Noticed:

MacDonald v. White et al. (1994), 97 Man.R.(2d) 313; 79 W.A.C. 313 (C.A.), refd to. [para. 15].

Finateri v. Goring and Manitoba Public Insurance Corp. (1985), 35 Man.R.(2d) 199 (C.A.), refd to. [para. 15].

E.J.S. Holdings v. Calgary (City) and Ellmar Developments Ltd. (1982), 41 A.R. 439; 139 D.L.R.(3d) 756 (C.A.), refd to. [para. 27].

Gray v. Langley (Township) et al. (1986), 34 D.L.R.(4th) 270 (B.C.C.A.), refd to. [para. 29].

Hopper v. Municipal District of Foothills No. 31 and Lancaster, [1976] 6 W.W.R. 610; 1 A.R. 129, refd to. [para. 31, foot­note 1].

Costello and Dickhoff v. Calgary (City), [1983] 1 S.C.R. 14; 46 N.R. 54; 41 A.R. 318; 23 Alta. L.R.(2d) 380, refd to. [para. 31, footnote 1].

Ompah Mines Ltd. v. Clarendon & Miller (Township) (1987), 36 D.L.R.(4th) 560 (Ont. H.C.), refd to. [para. 32].

Angled Enterprises Ltd. v. Quesnel (City) (1988), 39 M.P.L.R. 170 (B.C.C.A.), refd to. [para. 33].

Elliott v. Toronto (City) et al. (1999), 118 O.A.C. 362; 43 O.R.(3d) 392 (C.A.); leave to appeal dismissed (2000), 264 N.R. 400 (S.C.C.), refd to. [para. 35].

Sarlis v. CIBC Mortgage Corp. and Ander­son (1984), 26 Man.R.(2d) 72 (C.A.), refd to. [para. 38].

Statutes Noticed:

Court of Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280, sect. 35 [para. 14].

Municipal Act, S.M. 1970, c. 100; C.C.S.M., c. M-225, sect. 367(1) [para. 5].

Counsel:

R.B. McNicol, Q.C., and J.-M. Ruest, for the appellant;

A.A. Goodman, for the respondent, Mul­len.

This appeal was heard on October 4, 2000, by Philp, Kroft and Monnin, JJ.A. The decision of the Manitoba Court of Appeal was deliv­ered on November 30, 2000, and the fol­lowing opinions were filed:

Monnin, J.A. (Kroft, J.A., concurring) - see paragraphs 1 to 17;

Philp, J.A., dissenting - see paragraphs 18 to 44.