Elliott v. Toronto (City)

Elliott v. Toronto (City) Collection Decisions of the Court of Appeal Date 1999-03-22 Docket numbers C29100 Judges Morden, John Wilson; Catzman, Marvin Adrian; Laskin, John Ivan; Feldman, Kathryn N.; O’Connor, Dennis Subject Civil Decision Content DATE: 19990322 DOCKET: C29100; C29107 C29292; C29293 COURT OF APPEAL FOR ONTARIO MORDEN A.C.J.O., CATZMAN, LASKIN, FELDMAN and O'CONNOR JJ.A. BETWEEN: C29100 ) ) BETTYANN L. ELLIOTT ) ) Eric R. Murray Q.C. and Applicant (Appellant) ) Mark A. Mason ) for the appellants and ) ) CITY OF TORONTO and ) LONE STAR REALTY LTD. ) Susan L. Ungar and ) George W. Leonard Respondents ) for the respondent (Respondents in Appeal) ) City of Toronto ) AND BETWEEN: C29107 ) ) VERONICA LYNN ELLIOTT ) John P. Conway ) for the respondent Applicant (Appellant) ) Lone Star Realty Ltd. ) and ) ) CITY OF TORONTO and ) LONE STAR REALTY LTD. ) Heard: September 10 & 11, 1998 ) Respondents ) Written Submissions: (Respondents in Appeal) ) February 8 and 15, 1999 ) AND BETWEEN: C29292 ) ) J. DOUGLAS ELLIOTT ) ) Applicant (Appellant) ) ) and ) ) CITY OF TORONTO and ) LONE STAR REALTY LTD. ) ) Respondents ) (Respondents in Appeal) ) ) AND BETWEEN: C29293 ) ) LONE STAR REALTY LTD. ) ) Applicant ) (Respondent in Appeal) ) ) and ) ) VERONICA LYNN ELLIOTT ) ) Respondent (Appellant) ) ) MORDEN A.C.J.O.: [1] Four separate applications were heard together by Mr. Justice Gans on February 10 and 11, 1998 and determined by him in judgments dated February 13, 1998. Each of the four judgments has been appealed to this court. Before describing each appeal, I shall set forth the nature of each application and the terms of the judgment given in it. The applications relate to a tax sale proceeding under the Municipal Tax Sales Act, R.S.O. 1990, c. M.60 ("the Act") commenced by the City of North York (amalgamated into the City of Toronto on January 1, 1998) in August of 1996 with respect to 39 McGlashan Road, a residential property in North York registered in the name of Veronica Lynn Elliott. I shall now describe each application. Veronica Elliott's Application [2] By notice of application dated December 17, 1997 Veronica Lynn Elliott sought against the City of North York: (a) an interim and permanent injunction restraining the respondent from selling, transferring, vesting, registering a tax deed, or dealing with ........ 39 McGlashan Road, North York; ... (c) a Declaration that the pending or completed transaction of the property is void or voidable; (d) relief from forfeiture upon such terms as are considered just; (e) a mandatory Order requiring the Treasurer of the Respondent to register a Tax Arrears Cancellation Certificate in the prescribed form; (f) an interim and permanent injunction restraining the Respondent from initiating, continuing, maintaining or concluding any proceedings or sale of the Property pursuant to the provisions of the Municipal Tax Sales Act; and (g) an order cancelling any proceedings commenced, continued or maintained pursuant to the provisions of the Act upon payment of the Cancellation Price, as that term is defined in the Act, or such other amount as determined by this Honourable Court, together with other relief, which is not now material to this appeal. On January 14, 1998 Spiegel J. made an order adding Lone Star Realty Limited as a respondent in this application. [3] Gans J. dismissed this application. In his judgment he made orders respecting costs and other matters to which I shall refer later. Veronica Elliott appeals from the dismissal of her application and from the costs order. Douglas Elliott's Application [4] Douglas Elliott is the husband of Veronica Elliott. By notice of application dated February 3, 1998 he sought a declaration that the pending or completed tax sale of the property located at 39 McGlashan Road was void or voidable and, also, some of the other relief sought by Veronica. In his judgment Gans J. added Lone Star Realty Ltd. as a respondent, on consent, dismissed the application "insofar as such is necessary, without prejudice to any action the applicant might launch against the City of Toronto for damages only, occasioned as a result of the alleged misrepresentation or claims for legitimate expectations asserted in the application", and made a costs order similar to the one made in Veronica's application. Douglas appeals from the dismissal of his application and from the costs order. Bettyann Elliott's Application [5] Bettyann Elliott is the mother of Douglas Elliott and a mortgagee of the property in question. By notice of application dated February 3, 1998 she sought the same relief as was sought by Douglas Elliott. In his judgment Gans J. added Lone Star Realty Ltd. as a respondent, dismissed the application without prejudice to an application being commenced against the City of Toronto, and ordered that there be no costs as against the applicant. Bettyann appeals from this decision. Lone Star's Application [6] Lone Star is the purchaser of the property in the tax sale proceedings. By notice of application dated January 19, 1998, which is described as a "counter-application" to the application of Veronica Elliott, Lone Star sought "a declaration that upon registration of the tax deed the applicant is entitled to vacant possession of the premises municipally known as 39 McGlashan Road ...". In his judgment, Gans J. ordered that Douglas Elliott be added as a respondent and granted the declaration sought - that Lone Star be granted leave to issue a writ of possession in respect of the property upon registration of the tax deed, and that the respondents pay Lone Star's costs of the application. Veronica appeals from this judgment. Brief Outline of the History of the Tax Sale Proceeding [7] Veronica Elliott purchased the property in September of 1985. On March 27, 1986 a first mortgage, securing $500,000, was registered in favour of Bettyann Elliott. On August 6, 1996 the City registered a tax arrears certificate, Form 1 under the Municipal Tax Sales Rules, Regulation 824, R.R.O. 1990 ("the Rules"), certifying that tax arrears in the amount of $23,417.94 were owing on December 31, 1995. It set out that the property "will be sold by public sale if the cancellation price is not paid within one year", that is, by August 6, 1997. [8] On September 6, 1996, under s. 4(1) of the Act, notices of registration of tax arrears certificate were sent by the municipality by registered mail to Veronica at the property, to Douglas at the property, and to Bettyann at 5 Belton Road, North York, which was the address for service for Bettyann set forth in her mortgage registered on the title to the property. [9] Douglas admitted receiving this notice. Veronica signed an acknowledgement of receipt card with respect to the notice and three others which she received at the same time. She did not read the notice. Bettyann did not receive the notice. She had moved from 5 Belton Road in 1989. The notice to her was returned to the municipality marked "Return to sender ... unclaimed." [10] On May 23, 1997, under s. 9(1) of the Act, the second and final notice was sent by registered mail to Veronica, Douglas and Bettyann at the addresses to which the first notices were sent. The second notice stated that the "land will be advertised for public sale unless the cancellation price is paid or an extension agreement between the municipality ... and the owner of the land, is arranged before the 6th day of August, 1997." Bettyann happened to be at the property when the four notices sent to it arrived and she signed acknowledgement of receipt cards with respect to these notices. The notice which was sent to Bettyann at 5 Belton Road, North York, was returned marked "Return to sender ... moved. Address unknown." [11] The property was advertised for sale in November of 1997. On December 10, 1997 789588 Ontario Inc. (trustee for Lone Star Realty Ltd. and hereafter referred to as "Lone Star") submitted a tender. The tender opening was on December 10, 1997 and the highest bid was that of Lone Star, at $521,300. The tender was accompanied by a deposit of $108,600. On December 11, the municipality's Director of Tax Revenue, Margo Brunning, by faxed letter notified Lone Star that its bid was the highest and that under the legislation it had 14 days to pay the balance of $412,700. [12] On December 15, 1997 Lone Star delivered a certified cheque for $412,700 to the municipality, together with a cheque for land transfer tax. [13] On December 16, 1997 the solicitors for Veronica and Douglas wrote to the municipality to advise that they had just heard that the property had been sold by way of tax sale, to request certain information, and to advise that "[o]ur client wishes to pay the arrears or enter into an arrangement satisfactory to you for the repayment of the arrears prior to the registration of the tax deed." [14] On December 17, 1997 Veronica commenced her application against the City and on the same date Cullity J. granted an order on a motion made by Veronica, without notice to the City, restraining the City "from selling, transferring, vesting, registering a tax deed, or dealing with" the property and from "initiating, continuing, maintaining or concluding any proceedings or sale of the Property pursuant to the provisions of the Municipal Tax Sales Act". The order provided that it was to expire on December 24, 1997 unless extended by further order. [15] On December 24, 1997, Wilkins J. extended the order to January 19, 1998, on condition that Veronica pay $50,000 into court. On January 14, 1998 Spiegel J. made an order adding Lone Star as a respondent in Veronica's application. On January 16, 1998 Veronica paid the $50,000 into court. On January 23, 1998, Mandel J. adjourned the hearing to February 10, 1998 and extended the injunction to that date. (There does not appear to be an injunction order covering the period between January 19 and January 23.) [16] I have, at the beginning of these reasons, described the three other applications - Lone Star's commenced on January 19, 1998 and those of Douglas and Bettyann commenced on February 3, 1998. [17] As I have indicated, the hearing of the four applications took place before Gans J. on February 10 and 11, 1998 and he gave his oral reasons for judgment covering all of the applications on February 13, 1998. Each of the Elliott applications was dismissed and the Lone Star application was granted. [18] I shall now deal with each of the four appeals in turn and then, separately, the Veronica and Douglas costs appeals. In doing so, I shall refer to further facts than those set forth in the brief outline set forth above. Bettyann's appeal was dealt with at greater length during the hearing and involves more difficult issues than do the others. I shall deal with it first. I set forth the most material provisions in the Act in the appendix to these reasons in order to minimize undue repetition in these reasons. Bettyann Elliott's Appeal [19] This appeal turns, in the main, on the proper interpretation and application of s. 12(2) of the Municipal Tax Sales Act which reads: 12(2) Subject to subsection (4) and to section 13, (a) a failure on the part of the treasurer to substantially comply with section 4 or subsection 9(1); or (b) an error or omission in the registration or sale of the land, other than an error or omission mentioned in subsection (5), renders the proceedings under this Act voidable. [20] Before addressing the specific points raised by the parties to this appeal, it may be useful to address some matters of general context. One matter is concerned with the time within which a person has the right to "redeem" simply on paying the cancellation price. I quote the word "redeem" because it does not appear in the Act but is the word that is commonly used. I think it is clear that there is no such right under the statute after the year following the date of the registration of the tax arrears certificate under s. 3. [21] This does not mean that if s. 12(2) is applicable a person with an interest may not successfully challenge sales proceedings and thereafter redeem the property on paying the cancellation price. It is also not intended to involve the expression of an opinion on the discretionary power the treasurer may exercise under s. 12(6). At this point I should refer to Deverell v. The Corporation of the Townships of Anson, Hindon and Minden (1998), 110 O.A.C. 372 (C.A.). In this decision a panel of this court granted relief to the defaulting taxpayers under s. 12(6) of the Act. It was not clear from the appellants' factum in the appeal before us whether Bettyann was seeking relief under s. 12(6) in addition to relief under s. 12(2). If she were seeking relief under s. 12(6) Deverell would, of course, be relevant. The respondents submitted that Deverell was wrongly decided. In these circumstances, a five-judge panel of the court was constituted to hear the appeal. [22] On the hearing of the appeal, Mr. Murray made it clear that the appellant was not seeking relief under s. 12(6) in this appeal. In fact, she has commenced an application for judicial review seeking this relief in the Divisional Court. Accordingly, there is no proper basis for our considering the correctness of Deverell. [23] I am of the view that there is no right to redeem after the one-year period simply upon paying the cancellation price because ss. 3(2), 5(1) and 9(2) make it clear that the cancellation price may be paid within the year but that thereafter the land "shall be sold". The cut-off point is clearly expressed and there is no reasonable basis for thinking that the right which existed during the year continues after its expiration. At this point "the land shall be offered for public sale" (s. 9(2)). [24] It may be that some municipalities will, in fact, allow a redemption after one year. In her cross-examination, Margo Brunning, who had been the Director of Tax Revenue for the City of North York for 14 years, said that the City accepted payments of tax arrears more than one year after the registration of the tax arrears certificate but only before the advertising of the sale of the property. The matter is canvassed in Tansley, "Municipal Tax Sales", Municipal World (September 1995) 3 at 4: Many municipalities take the path of least resistance and exercise discretion under subsection 12(6) whenever someone wants to redeem the property and a sale has not yet occurred. Other municipalities may take a different approach and refuse to permit the taxes to be paid after the statutory redemption period has expired and forge ahead with the tax sale. The most prudent position is a compromise between these two strategies. The municipality should allow redemption by anyone entitled to do so, even though the statutory period for redemption has passed, but only until advertising has begun. After that time, there is a bidding process in place, which must be completed in a fair manner. Potential bidders may have a legitimate complaint if they have spent time and money investigating a property and submitting a bid, including a 20% deposit, only to find that the property has been redeemed on the date of the auction or the date when the tenders are opened. It appears that North York followed the compromise position. Before concluding on this point, I note that there is a good policy reason why there should be no right after the expiration of the year. It is suggested in the quotation set forth above. The integrity of the sale process would be substantially impaired. There would be fewer potential purchasers and the bids could well be lower. [25] Still in the realm of time restrictions, the arguments before us were in conflict on when tax sales proceedings could be effectively challenged under ss. 12(2) and (3). Lone Star submitted that the period comes to an end when a successful purchaser is determined under s. 9(3) of the Act. I agree with the contrary argument of the appellants and the City that the right to challenge exists up to the registration of the tax deed (or notice of vesting). This view is consistent with the wording of s. 12(3) which contains the term "before the registration of a tax deed or notice of vesting" and s. 13(1) which commences "[s]ubject to proof of fraud, every tax deed and notice of vesting, when registered, is final, binding and conclusive and not subject to challenge for any reason ..." It is also consistent with the decision in Perry Township Tax Sale No. 92-1 (Re) (1993), 14 O.R. (3d) 45 (Gen. Div.). [26] It will also be useful at this point to deal briefly with a municipality's specific obligations respecting the s. 4(1) notice of the registration of a tax arrears certificate and the s. 9(1) final notice. The statutory obligation of the treasurer is to "send" these notices. The obligation does not extend to "giving" or "serving" the notices. In this regard, the Act is like the one considered in E.J.S. Holdings v. City of Calgary (1982), 139 D.L.R. (3d) 756 (Alta. C.A.) and Ompah Mines Ltd. v. Township of Clarendon and Miller (1987), 36 D.L.R. (4th) 560 (Ont. H.Ct.) and unlike the ones considered in Gray v. Langley (Township) (1986), 9 B.C.L.R. (2d) 1 (C.A.) and Angled Enterprises Ltd. v. Quesnel (City) (1988), 39 M.P.L.R. 170 (B.C.C.A.). [27] Section 11(1) provides for the methods of sending notice. One method is to give the notice by personal delivery. The alternative method is to send it by certified or registered mail. Section 11(5) makes it clear that actual receipt of a notice properly sent is not a legal requirement. [28] In this latter regard, Bettyann referred to and placed some reliance on s. 11(4)(a) which states that a statutory declaration registered under s. 4(4) or made under s. 9(2)(c) "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". 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. 4(1) and s. 9(1) notices to be legally effective must be received. Receipt is not a necessary element of the concept of "send to" (ss. 4(1) and 9(1)) and would be inconsistent with s. 11(5). See Bay Colony Ltd. v. Wasaga Beach (Town) (1997), 33 O.R. (3d) 637 (C.A.) at 639, leave to appeal to S.C.C. refused, February 12, 1998. 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. 11(4)(a) allows this submission to be made. [29] Bettyann has submitted, quite specifically, that she is entitled to relief under s. 12(2)(b) because the fact that she did not receive the notice is an "error or omission" under that clause. She submits that the error or omission does not have to be that of the treasurer; it can be that of anyone or of no one. It could be that Bettyann herself, in failing to keep her address up to date in the mortgage, as provided for in s. 42(2) of the Registry Act, R.S.O. 1990, c. R.20, or its counterpart under the Land Registration Reform Act, R.S.O. 1990, c. L.4, committed an error or omission of the kind contemplated by this provision. I shall discuss s. 42(2) and its counterpart under the Land Registration Reform Act in greater detail later in these reasons. [30] In support of this interpretation the appellant relies on the expressio unius principle. She submits that because s. 12(2)(a) refers to a "failure" on the part of the treasurer the words "error or omission" in s. 12(2)(b) must be understood to mean something different from a failure on the part of the treasurer. With respect, because of other contextual features, I do not think that this necessarily follows. I refer to the exceptions to s. 12(2)(b) provided for in s. 12(5), which clearly include failures or errors on the part of the treasurer or those made on the treasurer's behalf. These exceptions are a cogent indication of the scope of the general rule in s. 12(2)(b). [31] Bettyann also refers to the following statement of Riddell J.A. in Re Bayack (1929), 64 O.L.R. 14 (App. Div.) at 19 which relates to a provision in the Assessment Act R.S.O. 1927, c. 238, s. 72, relating to a "person complaining of an error or omission" in the assessment roll: I can find no reason to hold that the errors and omissions there referred to are the original errors or omissions of the assessor or anything for which he was responsible; there does not seem to be any reason to think that any error or omission, by the fault of any one or of no one, is not to be made right. [32] The context of the issue in Bayack is quite different from that in the present case. In Bayack it is clear that the issue was, rightly, the objective correctness of the assessment roll - with the result that the source of the error or omission was irrelevant. In the present case, s. 12(2)(b) would not make practical sense, and the Act would be unworkable, if the error or omission did not involve, in some way, a departure from the requirements of the Act leading to a tax sale. [33] The appellant also relies upon the statement of S.D. Loukidelis J. in Perry Township Tax Sale No. 92-1, supra, at p. 50: Subsection (2)(b) speaks of an error or omission in the registration or sale of the land other than those enumerated in s-s (5). That error or omission is not restricted to an error or omission by the treasurer alone. The treasurer or another may make the error or omission which will make the remedies in subsection 12(3) applicable. [34] The meaning of this is elaborated upon in the next paragraph: It is clear that the notices were sent to the wrong address. The regional assessment office had used the address 630 Euclid Avenue as found in Box 12 of the transfer, rather than s. C in the land transfer tax affidavit which is the "mailing address for future Notices of Assessment under the Assessment Act for property being conveyed." This address error by the treasurer was probably founded on the error in the regional assessment office, but, nevertheless having been adopted, became the error of the treasurer and the applicant municipality. From this it appears that S.D. Loukidelis J. was of the view that the sending of the notices to the wrong address was, ultimately, an error on the part of the treasurer. I do not think that he would have made this specific point had it not been material to his decision. [35] For the purpose of deciding this case it is not necessary for me to determine the full reach of "error or omission" in s. 12(2)(b). It is sufficient to say that I do not think that the words include something that does not involve a departure from the statutory requirements relating to a tax sale proceeding. Further, even if an error or omission under s. 12(2)(b) were not restricted to an error or omission in which the municipality was implicated, the failure of Bettyann to correct an address for service on the registered mortgage is clearly not an error "in the registration or sale of the land" under the Act. It is no more an error or omission than Veronica's failure to read the notices sent to her, which will be considered in the next part of these reasons. [36] The foregoing argument, based on s. 12(2)(b), was the one advanced by the appellant before Gans J. It was advanced on the assumption, for the purposes of argument, that the City had complied with the statutory notice requirements. In this court the appellant advanced the argument that the treasurer breached s. 12(2)(a) in that there was a failure to substantially comply with both s. 4(1) and s. 9(1). The submitted failure was not sending the notices to the appellant's solicitors whose name appeared on the mortgage. The relevant provision is s. 11(1)(b) of the Act which reads: 11 (1) Any notice required to be sent to any person under this Act may be given by personal delivery or, in the alternative, may be sent by certified or registered mail, .... (b) in the case of any person whose interest is registered against the title of the land, to the address of the person furnished under section 166 of the Land Titles Act or section 42 of the Registry Act or where no such address has been furnished, addressed to the solicitor whose name appears on the registered instrument by which that person appears to have an interest; [37] When Bettyann's mortgage was registered on March 27, 1986, the property was under the Registry Act system. Section 42 of the Registry Act, R.S.O. 1990, c. R.20, since repealed by S.O. 1998, c. 18, Sched. E., s. 230, effective December 18, 1998, in so far as it is relevant to this case, reads: 42 (1) A land registrar shall not register, .... (e) a mortgage or assignment thereof; .... unless there is endorsed on the instrument the address for service of each person obtaining or claiming an interest in or in respect of land under the instrument. (2) An address for service provided under this section may be changed by registering a notice in the prescribed form. R.S.O. 1980, c. 445, s. 37. (3) Subsections (1) and (2) do not apply to an instrument affecting land in a part of Ontario designated under Part I of the Land Registration Reform Act. [38] No mention was made in the argument before us that s. 42(3) of the Registry Act provides that subsections (1) and (2) do not apply to an instrument affecting land in a part of Ontario designated under Part I of the Land Registration Reform Act, R.S.O. 1990, c. L.4. All of Ontario is designated: Regulation 688, R.R.O. 1990, s.1. At our request, the parties filed written submissions on the effect of s. 42(3). [39] The Land Registration Reform Act, ss. 3(1)(a) and 14(j) and the regulation made under it (Regulation 688, R.R.O. 1990, s. 2(2) and Form 2, Box 15; s. 9 and Form 8) contain provisions which give effect to what is provided for in s. 42 (1) and (2) - the requirement that the registered mortgage contain the mortgagee's address for service and a provision enabling the mortgagee to change the registered address for service. [40] In these circumstances, with respect to land designated under Part I of the Land Registration Reform Act, the only sensible interpretation of s. 11(1)(b) of the Municipal Tax Sales Act is to read it as referring to the substituted provisions in the Land Registration Reform Act and the regulation made under it: the Interpretation Act, R.S.O. 1990, c. I.11, s. 15(b); Sullivan, Driedger on the Constitution of Statutes 3rd ed. (1994), pp. 85-86 and 104-110; and Côté, The Interpretation of Legislation in Canada, 2nd ed. (1991), pp. 326-327. In short, the address for service set forth in Bettyann's mortgage must be regarded as the address for service contemplated by s. 11(1)(b). [41] The section 4(1) notice which was sent by registered mail to 5 Belton Road, North York, the appellant's address for service stated in the mortgage, was returned marked "Return to sender ... unclaimed." The s. 9(1) notice sent to the same address was returned marked "Return to sender ... moved. Address unknown." [42] The issue is whether the City substantially complied with the notice provisions in the Act - specifically s. 12(2)(a). This takes us directly to s. 11(1)(b). Did the City send the notices to the appellant to the address for service furnished by the appellant in her mortgage? The answer, no doubt, is that it did. Is this substantial compliance? The appellant submits that it is not because the treasurer knew that the appellant was not at 5 Belton Road, North York, and that she had not received the notices. The appellant submits that in the circumstances it was the treasurer's obligation to send the notices to the appellant's solicitor, whose name appears on the mortgage. [43] The issue is one of the interpretation and application of s. 11(1)(b). Before this task can be satisfactorily performed the facts as they appear must be closely examined. The treasurer clearly cannot be faulted at all with respect to the first notice. There is no basis for thinking that the treasurer should have sent this to the solicitor. It was sent to the address furnished by Bettyann in the mortgage to her. Further, it does not appear to me that the return of notice marked "unclaimed" necessarily told the treasurer that the appellant had moved, particularly when the stamp form on which "unclaimed" was marked had, lower down, "moved address unknown", which was unmarked. [44] In these circumstances, I do not think that the treasurer can be faulted for sending the s. 9(1) notice to the same address. This one was returned marked as I have indicated, "moved ... address unknown". Did these circumstances require the treasurer to take further action to send the notice, such as sending it to the solicitor? I do not think so. [45] Part of the context in which this question should be examined is the form of the mortgage and the legislation relating to it. In Box 15 of the mortgage form the appellant's address for service appeared - 5 Belton Road, North York. This must be taken to be her statement to anyone examining the document that she could be served with documents relating to the mortgage by sending them to that address. Further, she was not forever bound by that address if she moved from it because, by using Form 8 in Regulation 688, she could have furnished the land registrar with her new address. This was not done in this case. I would not say that this consideration, by itself, should determine the issue against the appellant but it is a relevant factor in considering the fairness of the procedure followed when the treasurer follows the direction of s. 11(1)(b). [46] In Excelsior Mining Co. v. Lochead (1915), 35 O.L.R. 154 (H. Ct. Div.) an action to set aside a sale of the plaintiff's land for taxes in arrears, the owner had not received a notice to redeem under the Assessment Act, 1904, 4 Edw. VII, c. 23, s. 165. It was noted at p. 159 by Boyd C. that "[t]he sale was completed without any notice coming home to the plaintiffs as to the state of the arrears and the impending tax-deed". He then said on the same page: The machinery of taxation moves; and if a non- resident owner does not avail himself of the simple means afforded by the statute of lodging his proper address where all notices may be sent by the municipal officers, he can only blame himself if disaster ensues. [47] As far as principles of statutory interpretation are concerned, I accept that where a person's interest in property may be taken pursuant to statutory provisions relating to the sending of notice these provisions should be liberally construed in favour of the person. (Gray v. Langley (Township) (1986), 9 B.C.L.R. (2d) 1 (C.A.) at 29-30) and, the converse, that strict compliance is required of the municipality (Bay Colony Ltd. v. Wasaga Beach (Town) (1997), 33 O.R. (3d) 637 (C.A.) at 639). [48] How does this approach apply to the interpretation and application of s. 11(1)(b)? I would say that if it is reasonably capable of an interpretation that requires a properly addressed s. 9(1) notice which is returned to the treasurer marked "moved" to be re-sent to the solicitor, then this interpretation should be adopted. I do not think that the wording of s. 11(1)(b), particularly in the context of the scheme of the Act, is reasonably capable of this interpretation. [49] The notice is to be sent to the solicitor where no address for service has been furnished. In the present case an address for service was furnished. The fact that Bettyann did not keep it current, as she was required to do if she wished to receive notices affecting her interest, does not alter this. When the s. 9(1) notice was sent out, the treasurer did not have notice that she had moved. [50] Further, the section 4(1) and 9(1) notices are to be sent within specific time periods. What if the treasurer cannot send the second, re-addressed, notice to the solicitor within the specified time? Should this abort the proceeding? I do not think so. The Act contains "a carefully crafted legislative scheme" (Zeitel v. Ellscheid, [1994] 2 S.C.R. 142 at 152) which is capable of reasonable implementation in accordance with its expressed terms. It may well not be capable of reasonable implementation if unexpressed terms are read into it. Reading in of this kind is a method of statutory interpretation for the Municipal Sales Tax Act which has been clearly proscribed by the Supreme Court of Canada in Zeitel v. Ellscheid, supra, at p. 152 per Major J.: Recognition of the proper roles of the legislature and the judiciary requires that the courts give effect to the plain meaning of the words of a duly enacted statute. It is beyond the power of a court to interfere in a carefully crafted legislative scheme merely because it does not approve of the result produced by a statute in a particular case. [51] The appellant has also submitted, relying upon Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, that under a general right to procedural fairness, the treasurer should have sent the notices to the solicitor. It is not clear to me that the doctrine of procedural fairness in administrative law, which involves the opportunity of persons to influence administrative decisions affecting their rights, is applicable to the situation in the case before us which involves the administration of a statutory scheme. This is "a carefully- crafted legislative scheme" which, of course, must be interpreted fairly in favour of persons whose rights are affected by it. However, as I have indicated in the preceding paragraph, the importation of the obligation now suggested, that is, to re-send a s. 9(1) notice following its return marked "moved", is inconsistent with the statutory scheme. [52] I wish to make it clear that I leave open what the proper result would be if the treasurer had had clear notice, before the s. 9(1) notice was to be sent out, that Bettyann no longer resided at the address for service in the registered mortgage. Actual Prejudice [53] Section 12(2) of the Act, according to its terms, is "[s]ubject to subsection (4) ...". Subsection 4 provides: (4) Proceedings for the sale of land under this Act are not voidable unless the person complaining of any neglect, error or omission establishes that he or she suffered actual prejudice as a result of the neglect, error or omission. [54] By reason of this provision, even if Bettyann had shown neglect, error or omission under s. 12(2), it would not avail her unless she established actual prejudice as a result of it. The issue of Bettyann's actual prejudice was raised by the City and Lone Star but it received comparatively little attention in the argument before us. The issue is whether the sale price is sufficient to pay the debt owing under the mortgage. If Bettyann were to have her mortgage fully paid from the proceeds of sale it could not be said she would have suffered actual prejudice. Bettyann's mortgage is in the face amount of $500,000 plus 12% per annum. The evidence shows, however, that only $300,000 was advanced by Bettyann to Douglas on the mortgage. The mortgage was due in December of 1987. Nothing has been paid on account of principal or interest. Accepting these facts, the amount advanced and interest to 1997 would total an amount that clearly could not be paid by the net sale proceeds of $521,300 minus tax arrears and related expenses of approximately $50,000. She would, accordingly, suffer prejudice. [55] Lone Star has submitted that Bettyann has been unable to produce contemporaneous or independent evidence of the advances which total $300,000, that she did not know the lawyer who prepared the mortgage, that she did not receive a reporting letter, that she was not aware she even had a copy of the mortgage in her possession, and that it was her evidence that Douglas was to repay the loans secured by the mortgage "if, as and when he could". [56] Based on this, Lone Star has submitted that it is speculative whether Bettyann will suffer prejudice as a mortgagee. Because of the evidence that the loans were to be repaid on an "if, as and when" basis, Lone Star submits that it may be inferred that the transaction was, fundamentally, one of gift. [57] I think that Bettyann has put forward sufficient evidence to establish actual prejudice as a result of the tax sale - but not as a result of any neglect, error or omission which would make the sale voidable. Although the evidence is open to an interpretation along the lines suggested by Lone Star, I think it is fair to observe that the prejudice issue was not developed in detail or treated as a major one. The case was fought, almost entirely, on the proper application of s. 12(2). [58] For these reasons I would dismiss the appeal. Veronica Elliott's Appeal [59] Veronica raised three issues in her factum. 1. The proposed sale of the property was not advertised in accordance with the requirements of s. 9(2)(d) of the Act. 2. The City did not comply with s. 11(1) of the Rules, which require the Treasurer of the Municipality to "notify the higher tenderer, by ordinary mail ..., that the tenderer will be declared to be the successful purchaser" if the balance of the amount tendered, land transfer tax and accumulated taxes are paid within 14 days. 3. The costs order was wrong in more than one respect. [60] On the hearing before us, additional issues were raised on behalf of Veronica: 4. The City did not follow s. 11(1) in the Rules in one additional respect - in that the deposit was paid by certified cheque and not cash. 5. Veronica never knew about the tax arrears and the sale proceedings. This should entitle her to relief under s. 12(2)(b) of the Act as an "omission". [61] I address these issues as follows: (1) The non-advertising issue was not argued on the hearing of the appeal by reason of fresh evidence, which we admitted at the opening of the hearing, showing full compliance with all requirements. Further, in any event, I think that Gans J. was right in proceeding on the basis that the advertising condition had been satisfied - in view of the position Veronica's counsel (not Mr. Murray) adopted before him, a position that did not challenge the City's evidence that all procedural pre-conditions to the sale had been met. The issue was first raised by Veronica's counsel during argument. Gans J. said that he would then have granted leave to the City to file evidence of the advertisements actually placed had this been requested. (2) Non-compliance with the ordinary mail provision of s. 11(1) the Rules, by reason of the notification of the purchaser by fax is not something upon which Veronica may properly rely in showing a s. 12(2)(b) error or omission because, clearly, she cannot show that she suffered any prejudice as a result of it, as required by s. 12(4) of the Act. (3) I shall deal with the costs order later in these reasons when considering the same point raised in Douglas's appeal. (4) The payment of the deposit by certified cheque was in compliance with the Rules. Section 24 in the Rules provides that any payment required by the Rules to be made in cash may be made by certified cheque. In any event, the form of payment occasioned no actual prejudice to Veronica. (5) There is no doubt that the two notices were properly sent to Veronica. According to her evidence, she chose not to read them, leaving such matters to her husband. Whatever may be the scope of "error" and "omission" in s. 12(2)(b) it cannot be so elastic as to make room for this argument. Were it otherwise, the effective operation of the Act would be frustrated. [62] I would not give effect to any of these grounds of appeal. Douglas Elliott's Appeal [63] Douglas concedes that he received both of the notices although, apparently, he did not look at the second one until some time in December of 1997, when he found it among his papers. His basic ground of appeal, apart from that relating to the costs order against him, is that Gans J. erred in refusing him an adjournment of the hearing of the application. Related to this ground, he submits that Gans J. erred in not directing the trial of an issue and in holding that there was no genuine issue for trial. I mention at this point that this latter holding was made in the context of considering Douglas's submissions that he should have the opportunity to file reply affidavit material in response to the City's responding material. The judge held that Douglas's affidavit, on its own, did not show that he was entitled to the relief on the basis he sought it - so he did not need to consider the City's materials. [64] I am not persuaded that Gans J., in refusing the adjournment, exercised his discretion on any improper ground that would justify or require this court's interference. He reviewed the circumstances carefully and observed that Douglas had commenced his proceeding late - in relation to when Veronica's application would be coming on for hearing. Douglas had originally sought to participate in Veronica's application as an intervener. He did not pursue this. On January 23, 1998 he was ordered to file response material to the City's material by February 5. He did not do this. Gans J., in response to the argument that Douglas was out of town on urgent business, thought that there was no good reason why a faxed affidavit could not have been prepared and submitted. [65] There is the further point that if the judge were to grant the adjournment sought by Douglas, it would not have been effective to preserve Douglas's right to the remedy he sought unless the completion of the tax sale to Lone Star was enjoined by a further interim injunction, which could have been granted only if Douglas had given an undertaking as to damages. Douglas was not able to do so, nor did he offer, according to Gans J.'s reasons, to post any security as a condition for the direction of the trial of an issue. [1] [66] To repeat, without an interim injunction, an adjournment was of no value to Douglas. Refusal of the adjournment did not end his right to claim damages should the conduct of the City give rise to a cause of action and, as noted, Douglas's application was dismissed "without prejudice" to any action he might commence against the City for damages. [67] The foregoing is sufficient to deal with the ground of appeal that Gans J. erred in refusing an adjournment and, accordingly, I need not deal fully with the question of whether Douglas's material, on its own, raised a genuine issue for trial. I must observe, however, that I am not persuaded that Gans J.'s analysis of this issue is wrong. It was Douglas's position that the City officials had promised him that the house would not be sold. This first took the form of assurances and representations that "the City would co-operate with me in my financial difficulties and would 'go along' with me until times got better." This was reflected in an "agreement" in June of 1994 "whereby I would make partial payments on account of tax arrears". This resulted in payments in June, July and August of 1994. No further payments were made after these - "as a result of further deteriorating financial circumstances." In these circumstance, the agreement which was the basis of the City's "going along" with Douglas was breached. [1] [68] Douglas, nonetheless, deposed that this caused no serious concern to the City. The City was comfortable with the situation and Douglas was told not to be concerned and to get back to the City "when I could make or discuss a repayment" plan. [69] In these circumstances, Gans J. was not wrong in characterizing Douglas's position as "the City officials promised him that the house would not be sold out from under him - he says - forever and a day" and that "[t]his position stretches the limits of credulity in all respects". Objection is taken to the description "forever and a day". While this is not literally what Douglas said, it is, substantially, what his position amounted to. The matter was to ride along until Douglas got back to the City when he felt he could "make or discuss" a repayment plan. In effect, he says the City would defer the process indefinitely. [70] Douglas is a lawyer who received the two notices which said that the property would be sold unless the cancellation price were paid, or, in the absence of an extension agreement, at the end of the one-year period following the date of the registration of the tax arrears certificate. Surely, he could not have thought that the City had any legal right to ignore its statutory obligations to sell the property in the absence of payment of the taxes within the year or within the time provided for in an extension agreement. [1] [71] For these reasons, I would dismiss this appeal. The Appeal from the Judgment on Lone Star's Application [72] In the notice of appeal from this judgment Veronica is the only appellant. Her factum states that the appeal is by herself and Douglas Elliott. This discrepancy can, if necessary, be corrected. [73] The ground of appeal is that Lone Star's application was premature in that there was no evidence whatsoever before the court to suggest, if the judgments of Gans J. became final and a tax deed were registered, that Veronica and Douglas would not vacate the property in favour of Lone Star. [74] While the right to possession should follow automatically upon registration of the tax deed and, accordingly, there should be no issue with respect to the right to possession at that time, I think there is substance in the appellants' point. The affidavit in support of Lone Star's application does not attempt to make out a case for the granting of a conditional order now, and Gans J. does not deal with this application at all in his reasons, apart from stating that the relief sought was granted. [1] [75] The respondent submits that the prematurity issue was not raised before Gans J. This may be so, but this does not mean that there is no need for a factual basis for the order. The bases for the order suggested now are speculative. I recognize that this is a relatively small issue in the total context of these applications and that this explains why it probably received little attention in the court below. Nonetheless, for the reasons I have given, I think that this appeal should succeed. The Costs Appeals [76] Veronica Elliott appeals from that part of the costs disposition in the judgment of Gans J. which, in addition to ordering that she pay to the respondents the costs of her application, also orders her to pay the respondents' costs of Bettyann Elliott's application and of Douglas Elliott's application. The judgment also provided that "the damages and costs awarded to be paid by this judgment shall be paid in the first instance out of the $50,000 paid into court pursuant to the order of Wilkins J. pronounced December 24, 1997". [77] A similar costs disposition was made in the judgment that dismissed Douglas's application, i.e., Douglas was ordered to pay the respondents' costs relating to his application and also those relating to Bettyann's and Veronica's applications. (The formal order, in paragraph 3 of the judgment, wrongly refers to his own application (98-CV 140926) instead of Veronica's application (97- CV-138161). [78] The grounds of appeal are (1) these appellants should not have been ordered to pay the costs of Lone Star because it was a respondent as a result of its motion to be added as a party in each proceeding and (2) because the appellants were non-parties in Bettyann's application and in each other's applications they should not have been required to pay the respondents' costs in those applications. [79] The respondents before us submit that since leave to appeal has not been sought, or granted, under s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, this court lacks jurisdiction to hear these appeals. The appellants' response to this is that, because the costs orders were made without jurisdiction, no leave is required. [80] I shall deal first with the issue relating to the costs orders in favour of Lone Star. In the circumstances of these applications, I am satisfied that Lone Star was a necessary party to enable the court to adjudicate effectively and completely on the issues in these proceedings (rule 5.03(4)). Clearly, it could have been adversely affected by the judgment sought in the proceedings (rule 13.01(1)(b)). No doubt the Elliotts would have so asserted had judgment been granted in their favour. In these circumstances, Gans J. did not err in the exercise of his discretion in making the costs orders in Lone Star's favour. [81] The appellants rely upon Friction Division Products Inc. v. E.I. Du Pont de Nemours & Co. Inc. et al. (1985), 51 O.R. (2d) 244 (H. Ct.) at 250 where Barr J. held that "[t]here will be no order as to the costs of Du Pont Canada Inc. as it intervened in the proceedings at its own request and for the protection of its own interests and was not brought into the proceedings by the applicant". This states the basis of Barr J.'s particular disposition. I do not regard it as enunciating a general rule, particularly where the added party is a necessary one. [82] I think that there is substance in the other ground of appeal, that relating to Veronica Elliott and Douglas Elliott being ordered to pay the respondents' costs in Bettyann's application and in each other's application. It is clear that, subject to certain exceptions which are not applicable to this case, a court does not have jurisdiction under s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to make a costs order against a non-party in a proceeding; see Rockwell Developments Ltd. v. Newtonbrook Plaza Ltd., [1972] 3 O.R. 199 (C.A.). The respondents submit that the orders in question were not made against non-parties. They were made in the Veronica and Douglas applications against, respectively, Veronica and Douglas. [83] With respect, this is what appears on the surface. I think that there can be no doubt that there would have been no jurisdiction to make orders against Veronica and Douglas in the judgment in the Bettyann application. I do not think that the substance of the matter is at all altered because they were made in the judgments in the Veronica and Douglas applications. Veronica and Douglas were ordered to pay the costs in a proceeding in which they were not parties. The same point may be made by confining the analysis to the Veronica and Douglas applications and the judgments made in them. Under s. 131(1) the judge's power was confined to awarding costs "of and incidental to" these proceedings - and not the costs of some other proceeding. Accordingly, although under this analysis the orders were not made against non-parties they included the separate costs of other proceedings. The judge gave no reasons for these particular costs dispositions and, we are told, they were made on his own motion. While I can appreciate that if the Elliott family is looked upon as one party there may be some sense to the orders but, on the plain facts, they were made without authority. [84] Accordingly, I would allow these particular appeals, with costs, and make orders striking out those parts of the costs dispositions in the judgments against Veronica and Douglas that ordered them to pay the respondents' costs in the other proceedings. There is no reason why Bettyann should not be liable to pay to the respondents the costs of her application. Accordingly, I would grant whatever amendments are necessary to give effect to this disposition. Disposition [85] For the foregoing reasons, and subject to what I have said in the preceding paragraph respecting the appeals from costs, I would dismiss, with costs, the appeals of Veronica Elliott, Douglas Elliott and Bettyann Elliott from the judgments against them. I would allow Veronica Elliott's appeal against the judgment in Lone Star's application, with costs, and dismiss Lone Star's application with costs. Released: March 22, 1999 "J.W. Morden A.C.J.O." I agree "M.A. Catzman J.A." I agree "J. Laskin J.A." I agree "K. Feldman J.A." I agree "D. O'Connor J.A." A P P E N D I X MUNICIPAL TAX SALES ACT R.S.O. 1990, Chap. M.60 1(1) In this Act, "cancellation price" means an amount equal to all the tax arrears owing at any time in respect of land together with all current real property taxes owing, interest and penalties thereon and all reasonable costs incurred by the municipality, after the treasurer becomes entitled to register a tax arrears certificate under section 3, in proceeding under this Act or in contemplation of proceeding under this Act and, without restricting the generality of the foregoing, may include, (a) legal fees and disbursements, (b) the costs of preparing an extension agreement entered into under section 8, (c) the costs of preparing a survey where such is required to register any document under this Act, and (d) a reasonable allowance for costs that may be incurred subsequent to advertising under section 9; .... 3(1) Where any part of tax arrears is owing with respect to, (a) any improved land in a municipality on the 1st day of January in the third year following that in which the real property taxes become owing; .... the treasurer, unless otherwise directed by the municipal council, may prepare and register a tax arrears certificate in the prescribed form against the title to the land with respect to which the tax arrears are owing. 3(2) A tax arrears certificate shall indicate that the land described in the certificate will be sold by public sale if the cancellation price is not paid within one year following the date of the registration of the tax arrears certificate. .... 4(1) Within sixty days of the registration of a tax arrears certificate, the treasurer shall send or cause to be sent a notice in the prescribed form of the registration of the certificate to the following persons: 1. The assessed owner of the land. .... 3. Where the land is registered under the Land Titles Act, every person appearing by the register of title and by the index of executions to have an interest in the land as of the time of closing of the land registry office on the day the tax arrears certificate was registered other than a person who has an interest referred to in clause 9(5)(a) or (b). .... 4(2) Where a notice is sent under this section to a person appearing by the records of the land registry office to be the owner of the land or to a person who is an assessed tenant in occupation of the land, a notice shall also be sent to the spouse of such person and, where this subsection is complied with, section 43 of the Family Law Act shall be deemed to have been complied with. .... 4(4) The treasurer, forthwith after complying with subsections (1) and (2), shall make and register a statutory declaration in the prescribed form stating the names and addresses of the persons to whom notice was sent. 4(5) A person is not entitled to notice under this section if, (a) after a reasonable search of the records mentioned in subsection 11(1), the treasurer is unable to find the person's 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. 5(1) Before the expiry of the one-year period mentioned in subsection 9(1), any person may have the tax arrears certificate cancelled by paying to the municipality the cancellation price as of the date the payment is tendered and after the expiry of the one-year period the land shall be sold or vested in the municipality in accordance with section 9. 5(2) Where payment has been made under subsection (1), the treasurer shall forthwith register a tax arrears cancellation certificate in the prescribed form. .... 9(1) If the cancellation price remains unpaid at the expiry of the period of 280 days from the day of the registration of the tax arrears certificate, the treasurer, within thirty days of the expiry of the 280 day period, shall send or cause to be sent to the persons entitled to receive notice under section 4 a final notice in the prescribed form that the land will be advertised for public sale unless the cancellation price is paid before the end of the one-year period following the date of the registration of the tax arrears certificate. 9(2) If, at the end of the one-year period following the date of the registration of the tax arrears certificate, (a) the cancellation price remains unpaid; and (b) there is no subsisting extension agreement, the land shall be offered for public sale by public auction or public tender, as the treasurer shall decide, and the treasurer shall forthwith, (c) make a statutory declaration in the prescribed form stating the names and addresses of the persons to whom notice was sent under subsection (1); (d) advertise the land for sale once in The Ontario Gazette and once a week for four weeks in a newspaper that, in the opinion of the treasurer, has such circulation within the municipality as to provide reasonable notice of the sale or, where there is no such newspaper, the treasurer shall post notice in the municipal office and one other prominent place in the municipality and the advertisement shall be in the prescribed form. 9(3) The treasurer, in accordance with the prescribed rules, shall conduct a public sale and determine whether there is a successful purchaser and, (a) where there is a successful purchaser, the treasurer shall prepare and register a tax deed in the prescribed form in the name of the successful purchaser or in such name as the successful purchaser may direct; or (b) where there is no successful purchaser, the treasurer shall prepare and register, in the name of the municipality, a notice of vesting in the prescribed form. 9(4) The treasurer shall make and register, at the time of registering the tax deed or notice of vesting, a statutory declaration in the prescribed form stating that, (a) the tax arrears certificate was registered with respect to the land at least one year before the land was advertised for sale; (b) notices were sent and the statutory declarations were registered in substantial compliance with this Act and the regulations made under this Act; (c) the cancellation price was not paid within one year following the date of the registration of the tax arrears certificate; and (d) the land was advertised for sale, in substantial compliance with this Act and the regulations made under this Act. .... 9(10) Despite anything in the prescribed rules, except the rules relating to the determination of the successful purchaser, the treasurer, in conducting a sale under this Act, may do all things as are, in his or her opinion, necessary to ensure a fair and orderly sale. .... 11(1) Any notice required to be sent to any person under this Act may be given by personal delivery or, in the alternative, may be sent by certified or registered mail, (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 title of the land, to the address of the person furnished under section 166 of the Land Titles Act or section 42 of the Registry Act or where no such address has been furnished, addressed to the solicitor whose name appears on the registered instrument by which that person appears to have an interest; .... 11(4) A statutory declaration, (a) registered under subsection 4(4) or made under clause 9(2)(c) 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; (b) registered under subsection 9(4) is conclusive proof of the matters referred to in clauses 9(4)(a) to (d). 11(5) Nothing in this Act requires the treasurer to ensure that a notice that is properly sent under this Act is received by the person to whom it was sent. 1984, c. 48, s. 11(2-5). 12(1) No proceedings for the sale of land under this Act are void by reason of any neglect, omission or error but, subject to this section and to section 13, any such neglect, omission or error may render the proceedings voidable. 12(2) Subject to subsection (4) and to section 13, (a) a failure on the part of the treasurer to substantially comply with section 4 or subsection 9(1); or (b) an error or omission in the registration or sale of the land, other than an error or omission mentioned in subsection (5), renders the proceedings under this Act voidable. 12(3) Where, before the registration of a tax deed or notice of vesting, the treasurer becomes aware of a failure, error or omission referred to in subsection (2), the treasurer shall forthwith register a tax arrears 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. 12(4) Proceedings for the sale of land under this Act are not voidable unless the person complaining of any neglect, error or omission establishes that he or she suffered actual prejudice as a result of the neglect, error or omission. 12(5) No proceedings under this Act are rendered voidable by reason of, (a) a failure on the part of the treasurer to distrain for any reason or take any other action for the collection of taxes; (b) an error in the cancellation price other than a substantial error; (c) any error in the notices sent or delivered under this Act if the error has not substantially misled the person complaining of the error; (d) any error in the publishing or posting of advertisements if the error has not substantially misled the person complaining of the error; or (e) any error in the description of the land in the tax arrears certificate if the error has not substantially misled the person complaining of the error. 12(6) 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. 13(1) Subject to proof of fraud, every tax deed and notice of vesting, when registered, is final, binding and conclusive and not subject to challenge for any reason including, without limiting the generality of the foregoing, (a) the invalidity of any assessment upon which the tax arrears were based; and (b) the breach of any requirements, including notice requirements, imposed by this or any other Act or otherwise by law, and no action may be brought for the recovery of the land after the registration of the tax deed or notice of vesting if the statutory declaration required by subsection 9(4) has been registered. 13(2) Subsection (1) does not apply so as to prevent a person from bringing an action for damages against the municipality.