Langdon v. Holtyrex Gold Mines Ltd.

The appeal, in my opinion, should be dismissed with *Feb.22.

Costs.

(1) [1936] O.R. 409; [1936] 3 D.L.R. 194.

DAVIS J.-This is an action to restrain the registration of a tax deed and to have the tax sale set aside. Mr. Jus- Ho ix ce Jeffrey, the learned trial judge, dismissed the action. He found as facts that the taxes for which the land had been sold had been at the time of sale in arrear for more Davis J. than three years, that the sale had been "openly and fairly conducted," that the land had not been redeemed within one year after the sale and that the official deed of the land had been executed and delivered to the purchaser. These findings of fact were affirmed by the Court of Appeal. Within sixty days from the day of the sale, the municipal treasurer should have sent by registered mail to the plaintiff as registered owner and to any incumbrancer a notice stating that the land had been sold for taxes, the date of the sale, and that the incumbrancer or owner was at liberty within one year from the day of sale, exclusive of the day of sale, to redeem the estate sold by paying to the treasurer the amount of the purchase money together with ten per centum added thereto and other petty charges, as provided by sec. 174 of the Ontario Assessment Act as amended by 23 Geo. V (1933), ch. 2, sec. 14. The sale was on February 28, 1934, and the treasurer, being unaware of this amendment to the statute, made in 1933, followed the provisions of sec. 174 of the statute which had stood unchanged for many years before the amendment, and gave notice as thereby provided, stating that the incumbrancer or owner was at liberty within thirty days from the date of the notice to redeem the estate sold by paying to the treasurer the amount of the purchase money together with fifteen per centum thereon added thereto and other petty charges. The learned trial judge came to the conclusion that sec. 181 of the Assessment Act applied to a case such as this and that notwithstanding the neglect, omission or error of the treasurer in not complying with the amended provisions of sec. 174, in default of the taxes being paid or the land being redeemed, the right to bring an action to set aside the deed or to recover the land had been barred. The Court of Appeal, on the other hand, did not think that the provisions of sec. 181 applied, and reversed the trial judge. That is the real point in this appeal. Other alleged irregularities and objections to the sale raised by the plaintiff were determined against the plaintiff by both courts below and although pressed again upon this Court they are in their very nature such as will not induce this Court to consider an interference with the concurrent conclusions of the courts below in this respect.

We may observe at once that it is an entire misconception of the right of a municipality to enforce payment of its taxes by realizing its statutory lien upon the land to speak of that right in terms of either forfeiture or confiscation. There is no element of either in legislation which enables a municipality to realize upon a lien which the statute has given to the municipality to secure the payment of its taxes. The sole question here is whether or not the provisions of see. 181 apply to the neglect, omission or error of the treasurer in not giving the notice required by sec. 174 as amended. The intention of the Legislature in enacting sec. 181 is expressly stated in the section to be The Court of Appeal, however, felt bound to follow the decision of Logie J. in Myers v. Cochrane (1), affirmed with a variation by the Court of Appeal (2), where it was held that the sending of the notice required by sec. 174 is a condition precedent to the right of the proper officials to execute the deed. We cannot accept that proposition of law. Section 174 is not open to any such construction. No such sanction or penalty for non-performance is imposed by the section. A general provision imposing a penalty upon any treasurer, clerk or other officer who refuses or neglects to perform any duty required of him by the Act is provided by sec. 209.

Moreover, the Court of Appeal came to the conclusion that the neglect, omission or error on the part of the treasurer in this case was not covered by the provisions of sec. 181. That Court treated the treasurer as persona designata and denied that he was an agent or officer of the municipality within the meaning of sec. 181, relying on two S.C.R.]

Ontario decisions-Cummings v. Township of York (1) and Cruise v. The Town of Riverside (2).

In the former HoV case, it was not open to the plaintiff to have the tax sale in question set aside because it had been validated and con- 1 -hESro.

firmed by statute; the plaintiff's claim was based upon the D'viJ failure of the treasurer of the municipality to give the notice required by sec. 174 (then sec. 171) and was a claim for the amount he had been forced to pay to the purchaser at the tax sale in order to obtain a reconveyance of the property to him. Wright J. expressed the view that it was doubtful whether a municipal corporation would be liable for failure to observe or perform a statutory duty where the statute creating such duty does not either directly or by inference give a remedy to the person aggrieved through its non-performance, the cases appearing to him to establish that a municipal corporation is only liable for acts of nonfeasance where the statute expressly gives a right of action. But the learned Judge put his conclusion that the action failed upon the ground that the treasurer in selling the land for taxes had acted solely in pursuance of the statutory duties imposed upon him by the provisions of the Assessment Act and had not acted as an agent for or on behalf of the defendant corporation and therefore the defendant corporation was not liable for any of the acts of its treasurer relating to the said tax sale. "While it is true," he said, Cruise v. The Town of Riverside (3) was an action brought by a purchaser of lands at a tax sale against the municipality to set aside the purchase and for the return of the purchase price paid by him. The plaintiff, who had purchased three different parcels of land which had been advertised for sale as one parcel, alleged that the treasurer had informed him that if the lands were sold together as one parcel they could only be redeemed as one parcel. The owner redeemed one of the three parcels and the plaintiff thereupon sought to rid himself of his purchase at the tax sale of the three parcels. The trial judge set aside the sale and directed the municipality to repay the purchase moneys upon the ground that each parcel of land should have been individually put up for sale and that the parcels could not be sold as one block.

The defendant appealed and the appeal was allowed and the action dismissed without prejudice to any other action which the plaintiff might be advised to bring. It was said that the plaintiff had no right to recover the moneys unless and until the sale was set aside and, further, that the sale could not be set aside except in an action to which the treasurer was a party. Mr. Justice Riddell said, but he did say in the course of his judgment

We do not read those decisions as deciding that the treasurer, when he gives or omits to give the notice after sale provided by sec. 174, is not an officer of the municipality within the meaning of sec. 181, but if those decisions intended to lay down any such proposition, we cannot accept them.

The sale of the land for taxes was here an accomplished fact and the execution and delivery of the deed of conveyance or transfer of the land became thereafter a corporate act of the municipality, even though specific officers are designated by the statute to execute the deed. By see. 177 the deed shall be according to statutory form XI, or to the same effect, and the form provides for the seal of the municipality to be affixed. Notwithstanding that the treasurer through neglect, omission or error failed to give the notice after sale within the time and containing the statement required by sec. 174 as amended, the expressed intention and effect of sec. 181 is that the right of the former owner to bring an action to set aside the deed or to recover the land shall be barred where the owner has not paid the taxes on the land within three years after the same became in arrear or has failed to redeem the land within one year after the sale. The purpose of sec. 181 is very plain. While the treasurer in selling the land acted in pursuance of a statutory power vested in him, and in that sense may be S.C.R.]

regarded as persona designata, he did not cease to be, in any proper sense of the words "agent or officer" within the contemplation of sec. 181, an officer of the municipality. In City of Toronto v. Russell (1), the Privy Council had occasion to consider the provision of a section of a Davis J.

remedial Act (sec. 8 of 3 Edw. VII, c. 86) passed to cure defects in tax sales which had taken place in the City of Toronto. The section read as follows:

All sales of lands within the said city, up to and including the one held in the year 1902, and purporting to be made for arrears of taxes in respect of the lands so sold are hereby validated and confirmed, notwithstanding any irregularity in the assessment or other proceedings for imposition of any taxes so in arrear, or any failure to comply with the requirements of The Consolidated Assessment Act, 1892, or of The Assessment Act in regard to the manner in which any assessment roll, or collector's roll of the said city has been prepared,

* * *

Their Lordships at p. 501 expressed their opinion that, since the main and obvious purpose and object of the Legislature in passing the Act 3 Edw. 7, c. 86, was to validate sales made for arrears of taxes in the carrying out of which the requirements of the different statutes as to the mode in which they should be conducted had not been observed, and to quiet the titles of those who had purchased at such sales, the ,statute should, where its words permit, be construed so as to effect that purpose and attain that object.

Their Lordships continued:

The council can only act through its officers. The notice to be given by the council must be given by or through one of its officers. The omission to give it may therefore be fairly held to be " a failure or omission on the part of an official of the said city" to comply with the requirements of the Consolidated Assessment Act, 1892, and the Assessment Act, within the words of this statute.

In Cartwright v. City of Toronto (2), the present Chief Justice of this Court, in discussing the decision in City of Toronto v. Russell (1), said:

I see no reason to doubt that the passages of the judgment at page 501 form a part of the ratio decidendi. The effect of these passages, in my judgment, is to explode the notion which appears to have been founded on some decisions of this court, that statutes of this character are subject to some special canon of construction based, apparently, upon the presumption that all such statutes are prima facie monstrous. The effect of the judgment of the Judicial Committee is that particular provisions in such statutes must be construed according to the usual rule, that is to say, with reasonable regard to the manifest object of them as disclosed by the enactment as a whole.

We are all of opinion that the neglect, omission or error of the treasurer in this case comes within the provisions of sec. 181 and that the right to bring an action to set aside (1) [19081 A.C. 493.

(2) (1914) 50 Can. S.C.R. 215, at