



COURT OF APPEAL FOR ONTARIO

CITATION: Wilton v. Northern Bruce Peninsula
    (Municipality), 2020 ONCA 674

DATE:  20201026

DOCKET: C66314

Doherty, Paciocco and Coroza
    JJ.A.

BETWEEN

Shirley Wilton as an Estate
    Trustee of Anneliese Weiss

Appellant

and

Municipality of Northern Bruce
    Peninsula

Respondent

Shirley Wilton, acting in person

Nicholas Lovell, for the respondent

Heard: in writing

On appeal from the order of Justice Kofi
    N. Barnes of the Superior Court of Justice, dated November 2, 2018.

Paciocco J.A.:

OVERVIEW

[1]

Shirley Wilton appeals a judgment denying her
    application to set aside a 2016 municipal tax sale of a property at 19 Duke
    Lane, Lions Head, Ontario (19 Duke Lane). That property was registered under
    the
Registry

Act
,
    R.S.O. 1990, c. R.20,
in the name of her deceased parents, Frank
    and Anneliese Weiss, who purchased the property in 1968. Anneliese Weiss
    survived Frank Weiss. She lived until March 2005.

[2]

In the application now under appeal, Ms. Wilton
    contended that the municipal tax sale was null and void as the respondent, the
    Municipality of Northern Bruce Peninsula (the Municipality), had failed to
    give her notice of the tax sale, as required by law. The application judge
    dismissed the application, finding that the Municipality was not required by
    law to notify Ms. Wilton.

[3]

Ms. Wilton appeals that decision, arguing that
    the application judge erred in finding that the Municipality was not required to
    notify her of the tax sale. She also argues, for the first time on appeal, that
    the Municipality acted in bad faith by not furnishing her with notice. She asks
    this court to award her damages in the sum of $167,437.68, which she claims to
    be the fair market value of the property less the costs of sale.

[4]

Ms. Wilton brought the application, and now
    brings this appeal, as the Estate Trustee of Anneliese Weiss. Although she
    attests in her affidavit in support of the application to being the
    executor/trustee of the estate of Anneliese Weiss, Ms. Wilton has not filed
    documentation confirming her appointment as executor or trustee. I would nonetheless
    address her appeal on its merits. I would dismiss the appeal on the simple
    basis that the Municipality complied with its notice obligations and owed her
    no duty that it could have breached in bad faith.

MATERIAL FACTS

[5]

Ms. Wilton did not have a registered interest in
    19 Duke Lane when the tax sale was underway, or at any other time. She was never
    shown as an owner of the property on municipal tax assessment rolls. Nor did
    she file a notice of change of address with the Municipality, linking 19 Duke
    Lane to her personal address. Further, no documents relating to the estate of
    either Frank or Anneliese Weiss were lodged on title.

[6]

Ms. Wiltons claim that she was nonetheless
    entitled to notice is closely linked to evidence, presented during the
    application, that municipal employees were aware that: (1) in early 2009, Ms.
    Wilton arranged for the payment of the tax arrears on 19 Duke Lane that were
    outstanding at that time; (2) in related email correspondence with municipal
    employees, she referred to the Weiss estate and sought receipts in the name
    of the estate; (3) in September 2012, she arranged for the Municipality to send
    prepayment authorizations to her personal address. She and her husband gave prepayment
    authorization for taxes owing on property they owned, but one such
    authorization was completed for 19 Duke Lane, which she signed as Trustee for
    Weiss Estate and returned to the Municipality; (4) in October 2012, she arranged
    for the variation of the pre-authorized payment amounts in correspondence that
    included her contact information; and (5) further correspondence was exchanged
    between January 2013 and September 2015 relating to pre-authorized payments.
    This most recent correspondence, exchanged after cheques received by the Municipality
    were declined for insufficient funds and the Municipality gave notice of its
    refusal to process further pre-authorized payments, contained Ms. Wiltons
    personal contact information.

[7]

The Municipality decided to pursue a tax sale of
    19 Duke Lane and retained the firm REALTAX Inc. to undertake the process. After
    the necessary searches were conducted and tax arrears were confirmed in the
    amount of $11,356.27, as of December 31, 2014, a Tax Arrears Certificate was
    registered on title on January 30, 2015. A copy of that certificate and a
    Notice of Registration of Tax Arrears Certificates were sent by registered mail
    to Frank and Anneliese Weiss at two addresses: the 19 Duke Lane address shown
    on the Municipal Assessment Roll, and the Kitchener, Ontario address shown in
    the registered title document that disclosed their interest in the 19 Duke Lane
    property. Duplicate notices were also sent to Frank and Anneliese Wiess at both
    addresses in their capacity as spouses of one another. A Statutory Declaration
    Regarding Sending of Notice was sworn. The registered letters were returned
    unopened.

[8]

In November 2015, the property search was
    updated, and final notices were sent to Frank and Anneliese Weiss at the same
    addresses, once again, both in their personal capacity and as spouses of one
    another. A second Statutory Declaration Regarding Sending of Notice was sworn, notices
    of the pending tax sale were published in regional newspapers and in the
    Ontario Gazette, and tenders were opened on March 3, 2016. The property was
    transferred to the successful tenderer on March 24, 2016.

THE ISSUES

[9]

The issues raised by Ms. Wilton can be fairly
    described as follows:

A.

Did the Municipality fail to comply with the statutory notice
    obligations?

B.

Did the Municipality breach its duty of good faith to Ms. Wilton?

ANALYSIS

A.

Did the
M
unicipality
    fail to comply with the statutory notice obligations
?

[10]

The required notice obligations relating to a
    tax sale are set out in the
Municipal

Act,

2001
,
    S.O. 2001, c. 25. Section 374 provides, in relevant part, that within 60 days
    of the registration of a tax arrears certificate, the municipality is required
    to send a notice of the registration of the certificate to the following
    persons. The provision then lists persons to whom the notice must be sent. Two
    are relevant to the 19 Duke Lane tax sale:

1. The assessed owner of the land.



3. Where the
Registry Act
applies to the land, every person appearing by the abstract index and by the
    index of executions for the area in which the land is situate to have an
    interest in the land on the day the tax arrears certificate was registered.

[11]

Additionally, s. 374(2) of the
Municipal

Act, 2001

requires that notice also be sent to the spouse of the
    person receiving notice.

[12]

Where the cancellation price remains unpaid 280
    days after the tax arrears certificate is registered, s. 379(1) requires the
    municipality to send a final notice to the same parties entitled to receive
    notice under s. 374.

[13]

Section 381(1) of the
Municipal

Act,
    2001
sets out how both notices are to be provided. It directs that any
    notice required may be given by personal delivery or be sent by certified or
    registered mail. It then describes where the notice may be sent to, by
    certified or registered mail, depending upon the party being given notice.
    Three possibilities are relevant:

(a) in the case of the assessed
    owner, to the address of the person as shown on the last returned assessment
    roll of the municipality;

(b) in the case of any person whose
    interest is registered against the land, to the address for service of the
    person furnished under the
Land Registration Reform Act




(d) in the case of a spouse of the
    person appearing by the records of the land registry office to be the owner of
    the land, addressed to the spouse of (name of person) at the usual or last
    known address of such spouse or, if unknown, at the address of the land.

[14]

As indicated, the Municipality sent notices by
    registered mail to Frank and Anneliese Weiss at the address shown on the Municipalitys
    last assessment roll, and at the address shown in the registered documents
    disclosing their interest in the land. Moreover, duplicate notices were sent to
    Frank and Anneliese Weiss at both addresses, in their capacity as spouses of
    one another.

[15]

Ms. Wilton argues that, despite this, the notice
    requirements under the
Municipal

Act, 2001

have not
    been satisfied based on s. 381(2) and s. 374(5) of the statute.

[16]

She relies on s. 381(2) to argue that since the
    registered letters were returned unopened, proper notice was not provided.
    Section 381(2) provides:

A statutory declaration made under
    subsection 374(3) or made under clause 379(2)(a) is proof in the absence of
    evidence to the contrary that the notices required to be sent were sent to the
    persons named in the statutory declaration and received by them.

[17]

It is Ms. Wiltons position that the return of
    the registered mail is evidence to the contrary, thereby rebutting the deemed
    receipt provided for in s. 381(2). In my view, even if this is correct, it
    would be immaterial to whether proper notice has been given.

[18]

In
Elliott v. Toronto (City)
(1999)
, 171 D.L.R. (4th) 64 (Ont. C.A.), leave
    to appeal refused, [1999] S.C.C.A. No. 244, Morden A.C.J.O. rejected a similar
    argument made under the now repealed
Municipal Tax Sales Act
, R.S.O.
    1990, c. M-60, the precursor legislation to the tax sale provisions now
    found in the
Municipal Act, 2001
. There are minor differences in
    wording between relevant provisions of the
Municipal Tax Sales Act
and
    the
Municipal Act, 2001
but those differences are not material. The
    operation of the relative provisions remains identical.

[19]

To explain why the return of the registered
    letters has no bearing on the sufficiency of the notice provided, I will quote
    what Morden A.C.J.O. said in
Elliott
, at para. 28, but replace the
Municipal
    Tax Sales Act
sections with their counterparts in the
Municipal Act, 2001
:

Whatever the full meaning and effect
    of this provision may be, it does not state that it is a requirement of the Act
    that the s. [374(1)] and s. [379(1)] notices to be legally effective must be
    received. Receipt is not a necessary element of the concept of send to (ss.
    [374(1) and 379(1)]) and would be inconsistent with s. [381(4)]. I can envisage
    that in some circumstances it might be useful to a municipality to submit that
    there was, in addition to the sending of the notice, receipt  and s. [381(2)]
    allows this submission to be made. [Citation omitted.]

[20]

Put otherwise, since ss. 374(1) and 379(1) do
    not require receipt before a notice that has been sent is effective, s. 381(2)
    has nothing to do with whether proper notice has been provided. Instead, it was
    enacted so that if a municipality found value in arguing receipt, they could
    rely on the evidentiary shortcut that s. 381(2) provides. Section 381(4), a
    provision that would lose meaning were we to accept Ms. Wiltons submission,
    strongly reinforces this outcome. It provides: Nothing in this Part requires
    the treasurer to ensure that a notice that is properly sent under this Part is
    received by the person to whom it was sent.

[21]

I therefore reject the submission that the
    return of the registered letters had any bearing on whether notice had been
    properly sent.

[22]

Nor does s. 374(5) of the
Municipal Act, 2001
assist Ms. Wilton. It provides:

A person is not entitled to notice under this
    section if,

(a)
after a reasonable search of the records mentioned in
    subsection 381(1), the treasurer is unable to find the persons address and the
    treasurer is not otherwise aware of the address;
or

(b) the
    person has expressly waived the right to notice, either before or after the
    notice should have been sent. [Emphasis added.]

[23]

Ms. Wilton appears to argue, based on the words
    underlined above, that s. 374(5)(a) imposes a duty on the Municipality to
    undertake a reasonable search of the records mentioned in s. 381(1) and to give
    notice at the addresses identified. This is a misreading of s. 374(5)(a). As
    the heading of the section, Limitation, reflects, s. 374(5) is a limitation
    on the statutory duty to give notice of a tax sale. It does not impose an
    additional statutory notice obligation of general application. The plain
    meaning of s. 374(5) is that it operates where the address of a person entitled
    to notice is not disclosed by the records identified in s. 381(1). Where this
    is so, and the treasurer is not otherwise aware of the address, any otherwise
    operative right to receive notice pursuant to ss. 374(1) and 379(1) is lost.
    Section 374(5) does not apply in this case because the Municipalitys assessment
    roll and the registered documentation disclosing Frank and Anneliese Weisss
    interest in the land did supply addresses for Frank and Anneliese Weiss.

[24]

I would therefore dismiss this ground of appeal.
    The Municipality satisfied their notice obligations relating to the tax sale of
    19 Duke Lane.

B.

Did the Municipality

breach its duty
    of good faith to Ms. Wilton?

[25]

Ms. Wilton argues that, given that it knew or
    should have known that she had assumed responsibility for paying the taxes on
    19 Duke Lane, the Municipality had a good faith obligation to notify her before
    proceeding with a tax sale. Even if we chose to entertain this argument for the
    first time on appeal, it would have to be rejected.

[26]

First, the
Municipal Act, 2001

provides
    a comprehensive legislative scheme for the conduct of tax sales. According to
    the terms of the statute, the Municipality was not obliged to give Ms. Wilton
    notice of the tax sale. It would not be appropriate to rely on knowledge within
    a municipality of interested parties to fashion additional notice obligations
    on the municipality not provided for in this carefully crafted legislative
    scheme:
Zeitel
v.
Ellscheid
, [1994] 2 S.C.R. 142, at p.
    152;
Elliott
, at paras. 50-51. The Municipality owed no duty to Ms.
    Wilton to give her notice. In the absence of such a duty, there is no basis for
    her claim that the Municipality acted in bad faith.

[27]

Second, even if it were appropriate to recognize
    an additional, non-legislated notice obligation based on bad faith reasoning,
    this would not be an appropriate case in which to do so. Means were available
    to Ms. Wilton to ensure that she would have a legal right to receive notice.
    She could have lodged estate documents on title. She could have submitted a
    change of address redirecting tax information relating to the property to her
    personal address after her mothers death. Yet, she did nothing. In this
    context, I find unpersuasive her attempt to cast the Municipality as having
    acted in bad faith for failing to make the link, or failing to act on the
    link, between her inconsistent tax payment efforts and the correspondence they generated,
    and the notice required in relation to the 2016 tax sale.

[28]

I would reject this ground of appeal.

CONCLUSION

[29]

I would dismiss the appeal. The Municipality has
    indicated that it is seeking costs. If the parties cannot agree on costs, the
    Municipality should have 10 business days from the release of this decision to
    provide written costs submissions. Ms. Wilton should have a further 5 business
    days to respond. Costs submissions are confined to 3 pages, plus a supporting
    bill of costs.

Released: DD October 26, 2020

David
    M. Paciocco J.A.

I
    agree. Doherty J.A.

I
    agree. S. Coroza J.A.


