Inter-Fund Mortgage Corp. v. Welland (City)
The court held that the appropriate standard of review is reasonableness, that the Deputy Treasurer exercised his discretion reasonably having considered relevant factors and did not fetter his discretion, that the appellants' new contention about a 'secret practice' was not raised below and in any event there was...
Source-derived case information.
- Citation
- C37047
- Parties
- Appellant: Inter-Fund Mortgage Corp.; Appellant: Tim Thomas, in trust; Respondent: The Corporation of the City of Welland; Respondent: 1372695 Ontario Inc.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 12 May 2003
- Procedural Posture
- Civil Appeal / Court of Appeal Decision on Appeal From Superior Court of Justice Judgment Dated August 24, 2001
- Outcome
- Appeal dismissed
- Legal Topics
- Standard of Review, Treasurer Discretion, Tax Sale Redemption, Prejudice, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Inter-Fund Mortgage Corp.
Appellant
Tim Thomas, in trust
Appellant
The Corporation of the City of Welland
Respondent
1372695 Ontario Inc.
Respondent
Procedural Posture
Civil Appeal / Court of Appeal Decision on Appeal From Superior Court of Justice Judgment Dated August 24, 2001
Legal Issues
- 1 Whether the Treasurer's exercise of discretion is subject to a reasonableness standard of review
- 2 Whether the Deputy Treasurer fettered his discretion
- 3 Whether appellants were prejudiced by an alleged failure to disclose a practice of accepting cancellation price after the redemption period and before advertising for sale
Ratio Decidendi
The court held that the appropriate standard of review is reasonableness, that the Deputy Treasurer exercised his discretion reasonably having considered relevant factors and did not fetter his discretion, that the appellants' new contention about a 'secret practice' was not raised below and in any event there was no secrecy or prejudice, and therefore the appeal must be dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to respondent fixed at $15,000
Full Case Text
Judgment text and source record
1 paragraphs
Inter-Fund Mortgage Corp. v. Welland (City) Collection Decisions of the Court of Appeal Date 2003-05-12 Docket numbers C37047 Judges Feldman, Kathryn N.; Simmons, Janet M.; Gillese, Eileen E. Subject Civil Decision Content DATE: 20030512 DOCKET: C37047 COURT OF APPEAL FOR ONTARIO RE: INTER-FUND MORTGAGE CORP., & TIM THOMAS, IN TRUST (Applicants/Appellants) - and - THE CORPORATION OF THE CITY OF WELLAND & 1372695 ONTARIO INC. (Respondents/Respondents in Appeal) BEFORE: FELDMAN, SIMMONS and GILLESE JJ.A. COUNSEL: John A. Crossingham for the appellants Christopher J. Williams for the respondent HEARD: May 8, 2003 RELEASED ORALLY: May 8, 2003 On appeal from the judgment of Justice Joseph R. Henderson, of the Superior Court of Justice, dated August 24, 2001. ENDORSEMENT [1] We are not persuaded that Henderson J. made any error in law or principle in this matter. He quite properly found, on the basis of authority of this court in Deverell v. Anson, Hindon and Minden (Townships) (1998), 110 O.A.C. 372 (C.A.), that the standard of review of the Treasurer's exercise of discretion is one of reasonableness. [2] Henderson J. made no error in finding that the Deputy Treasurer had exercised his discretion in a reasonable manner. The evidentiary basis is clear that the Deputy Treasurer fully considered all relevant factors in the exercise of his discretion and we reject the contention that he in any way fettered that discretion. [3] The appellants seek to make the argument before us that they were prejudiced by the respondent's failure to advise them of a "secret practice" of accepting payment of the cancellation price after the expiry of the redemption period but before the commencement of advertising for sale. We begin by noting that this issue is raised for the first time before us even though it was clearly open to the appellants to raise it before Henderson J. Having failed to raise it below, it is not open to the appellants to now raise it. That said, we would note that, in any event, the practice was not secret -- it was in the literature and jurisprudence. Nor was it a practice inasmuch as the Treasurer was simply following the directions of this court in Elliott v. City of Toronto (1999), 43 O.R. (3d) 392 (C.A.). And, finally, there is no evidence of any prejudice to the appellants as a result of the failure to be apprised of the "practice". [4] For these reasons, the appeal is dismissed with costs to the respondent fixed in the amount of $15,000. "K.N. Feldman J.A." "J.M. Simmons J.A." "E.E. Gillese J.A."