Hyperlawhypertext legal database Tonks v. Reid [1965] SCR 624

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Tonks v. Reid

[1965] SCR 624 Court SCC Decision date 1965-06-14 English

Decision Majority · Judgment of the Court

Contents

Majority

CHRISTOPHER A. TONKS and
*May
31APPELLANTS;'
*May 31
HANNAH TONKS (Defendants)
' June 14
AND
HAZEL
DOREEN
REID and
R
RESPONDENTS;' JOHN CAIRD REID (Plaintiffs)
AND
THE CORPORATION OF THE
TOWNSHIP OF YORK (Defendant by writ).
MOTION TO QUASH

Judgment of the Court

CARTWRIGHT J.:-This is a motion to quash the appeal on the ground that the amount or value of the matter in controversy in the appeal does not exceed $10,000 and that consequently no appeal lies under s. 36 of the Supreme Court Act.
The action commenced by the respondents Hazel Doreen Reid and John Caird Reid arises out of the following facts. The respondents were the owners of a property which was bounded on one side by Myra Road in the Township of York. The Township decided to close the road and under the terms of the Municipal Act on doing so was under an obligation to give to the owners of the properties adjoining S.C.R.
the closed road the right to purchase the same. Instead of TONKS et al. offering the property as required the Township sold it to a REIDet l. prite-nom of the appellant Christopher Tonks who is the Reeve of the Township. Tonks paid $6,600 for the land and Cartwright J. has since spent over $25,000 in building a house on it. The prayer for relief in the statement of claim asks inter alia:
(a) a mandamus requiring the council of the defendant Corporation to fix the price at which the lands described in paragraph 5 hereof are to be sold, which lands comprised a highway which was legally stopped-up;
(b) a declaration that the plaintiff Hazel Doreen Reid as the owner of the land which abuts on the lands therein described has the right to purchase the soil and freehold of the lands therein described for the sum of 86,600.00 or at the price fixed as aforesaid or, in the alternative of the Westerly half of the said lands for the sum of $3,300.00 or at one-half of the price fixed as aforesaid;
(c) an order quashing section 2 of by-law number 15649 purported to have been passed by the Council of the defendant Corporation on the ground that the same is ultra vires and in contravention of the provisions of Sections 36 and 477 of the Municipal Act being Revised Statutes of Ontario 1960, Chapter 249 and setting aside all and any deeds executed or delivered or purported so to be by the defendant Corporation in pursuance thereof;
(d) an order setting aside the purported sale of the lands described in paragraph 5 hereof and any by-law insofar as it purports to approve, ratify and confirm such purported sale of the lands described in paragraph 5 hereof and the authorization of the execution and delivery by the reeve and clerk of the defendant Corporation of a deed purporting to convey the lands therein described to the said Marie Eunice Froman;
(e) an order setting aside and declaring null and void the deed from Mary Eunice Froman to the defendants Christopher A. Tonks and Anna Tonks;
The action was defended by the Tonks and by the Township who asked that it be dismissed with costs. The action was tried by King J. without a jury and was dismissed without costs. On appeal to the Court of Appeal the appeal was allowed and it was declared that the by-law of the Township in so far as it approved the sale of the land in question is invalid and should be set aside and that the deed to the pr~te-nom of the Tonks and the deed from such prite-nom to the Tonks are null and void and should be set aside.
The appeal seeks to restore the judgment at the trial. R.C.S.
If the appeal succeeds the result will be that the Tonks are the owners of the land and the building upon it. If the et al. appeal fails the result is that they have no title to this land. RED et l. It seems to me that under these circumstances the amount CartwrightJ. in controversy in the appeal is the value of the land and building which exceeds $30,000.
It is said on behalf of the respondents that all that is really involved is the validity of the by-law but I cannot accept this argument. The judgment in appeal expressly declares the conveyance to the Tonks void and deprives them of their title.
It was submitted on behalf of the respondents that although the appellants are deprived of their title they would have a right to claim a lien on the lands for the money they have expended. Even if this were so I doubt whether it would be relevant; but it seems clear that if the judgment -of the Court of Appeal stands the Tonks would have no such right. The judgment proceeds on the basis that
Tonks was acting fraudulently throughout and if that be so he could not be said to have been acting under a bona fide mistake of title when he made the improvements.
Since the case of Orpen v. Roberts', it has been settled that the amount or value of the matter in controversy is the loss which the appellant will suffer if the judgment in appeal is up-held-see Fallis v. United Fuel Investments Limited , where it was said in the unanimous judgment of the Court:
In my opinion the test to be applied in determining whether there is an amount involved in the proposed appeal exceeding $2000 is that set out in the judgment of this Court in Orpen v. Roberts et al, upholding the judgment of the Registrar affrming jurisdiction. The action was for an injunction to restrain the defendant from erecting a building nearer to the street line than 25 feet and to restrain the municipality from granting a permit for the erection of the proposed building. The report at page 367 reads as follows:
The Court said the subject matter of the appeal is the right of the respondent to build on the street line on Carlton street in the city of Toronto. "The amount or value of the matter in controversy"
(section 40) is the loss which the granting or refusal of that right would entail. The evidence sufficiently shows that the loss-and therefore the amount or value in controversy-exceeds $2,000.
Applying this test to the facts of the case at bar, the evidence shows that if the winding-up proceeds the appellant Fallis will suffer a loss greatly in excess of 52000.
1 [19251 S.C.R. 364, 1 D.L.R. 1101.
[19621 S.C.R. 771 at 774, 34 D.L.R. (2d) 175.
S.C.R.

Statutes and regulations cited