Splawny v. Power., [1942] CTC 197

HOGG J.:—On September 11, 1941, the surface rights of Lot No. 40 on Wilson Ave. in the Town of Timmins, Ontario, as shown on Plan M 22 (Sudbury) in the office of Land Titles at Cochrane, were sold at a tax sale by the Treasurer of the Corporation of the Town of Timmins for arrears of taxes amounting to $395.55.

The defendant was the assessed owner of the lands sold at the said sale, and had been such for some years prior to the tax sale. A certificate of sale dated September 11, 1941, was given to the plaintiff, the purchaser of the said lands. The defendant, the original owner, remained in possession of the lands after the sale and continued to reside upon the property.

There is evidence that after the sale the plaintiff caused a demand to be made upon the defendant for possession or for rent. As this demand was not complied with, the plaintiff commenced the present action on February 7, 1942, for possession of the property and for rent or mesne profits from the date of the sale at the rate of $30 per month.

On April 11, 1942, the sum of $656.49, the total amount required to redeem the property, was paid to the Municipality of the Town of Timmins, by one Lila Power. Such being the ease, the plaintiff properly admits that he had no further right to possession of the lands from the date of redemption, and his claim under the action for possession is abandoned.

In answer to the plaintiff’s claim for rent or profits from the land from the time of the sale to the time of redemption, the defendant in his statement of defence pleads that the tax sale in question was irregularly conducted, and that all proceedings taken thereunder are null and void, and that the plaintiff has no right to rent or profits from the land from the date of the tax sale to the date of redemption.

The evidence shows that in 1941 the property was assessed for a total amount of $650. The defendant stated in evidence that the buildings upon the land are old and in disrepair and are of no value, but that an offer had been made for the land of $2200.

From the description given by the defendant of the house on this land, I am of the opinion that its value would be very small. There are two small shacks on the land, one of which is used by the defendant during the summer months as a soft drink stand and from which he derived a small profit.

One of the grounds advanced by the defendant in attacking the tax sale is that the property in question was not properly described in the notice of the sale published in the Ontario Gazette. I cannot hold with this contention. The land consists of a town lot and the description appearing in the Ontario Gazette is "139 Wilson, East part Lot 40, Plan M. 22, S..’’ This clearly identifies the land.

The further objection raised by the defendant is that in the statement furnished the defendant by the Municipal Treasurer of arrears of taxes for the vears 1935 to 1940 inclusive, the taxes for 1937 are stated to be $54.82 exclusive of interest, and that the tax bill rendered to the defendant for 1937 states the taxes to be $55.18. No objection to this discrepancy, apparently, was made by the defendant, and the discrepancy is trifling. The sale would not be vitiated on this account : Claxton v. Shibley (1885), 10 O.R. 295.

The plaintiff contends that by virtue of the Assessment Act, R.S.O. 1937, c. 272, s. 171, he had the right to possession of the property and to the profits thereof from the date of the tax sale to the time of redemption.

In McLauchlin v. Pyper (1870), 29 U.C.Q.B. 526, it was held that the certificate of sale entitled the purchaser to enter upon the lands and turn out the owner in possession without being liable in trespass. See judgment of Wilson J. at p. 528, where that learned Judge held that after the time for redemption if the property is not redeemed, and the giving of the deed to the purchaser, the purchaser can take possession of the land and eject the former owner by authority of the certificate, but that there is no greater right given the purchaser by the statute to do these acts under the certificate after the time for redemption than the purchaser had while the period of redemption was continuing.

In Nat’l Trust Co. v. Barker, [1931] 3 D.L.R. 583, O.R. 388, it was held that the purchaser of land at a tax sale had the right to lease the land as an owner and receive the rents, and that under s. 167, now s. 171, of the Assessment Act such use was not restricted to the mere right to occupy the land. What is meant by the word "‘use’’ in this section is that the purchaser may use the land in any way the owner may so long as he does not interfere with the value of it, and has the right to lease the land as the owner could, to make money out of it as the owner could, and to receive the rents.

As this action now stands the sole question in issue is, what amount, if any, the plaintiff is entitled to as profits which he might have derived from the land if he had obtained. possession of it (to which he had a right) after the tax sale?

The assessed value of the property is small in amount. The defendant gave evidence that the buildings on the land were of no value, and the plaintiff did not produce evidence of what this particular property or similar property in this district, or a district in Timmins similar to that where the property in question is situated, would rent for.

My conclusion is that any profits which the plaintiff might have made from this property if he had obtained possession would be extremely limited in amount.

I think that the sum of $75 is a fair amount at which to fix any profit which the plaintiff could have made out of this property in the period of approximately 7 months between the tax sale and the date of redemption.

As to the question of costs: The defendant attacked the plaintiff’s title to the lot in question and endeavoured to show the sale to the plaintiff was void. There is evidence that the value of the property is in excess of $500. Such being the case, the County Court would not have jurisdiction and the action was one only within the jurisdiction of the Supreme Court. However, the dispute is an extremely petty one. If the plaintiff had been given possession when it was demanded, he would have had such possession at the risk of redemption and as it turned out could only have had possession for about seven months. The profits he could have derived from possession, were practically negligible. The claim for possession was of necessity abandoned. I thing this is a case for the exercise of my discretion as to costs, and I will fix the plaintiff’s costs at the sum of $50.

Judgment accordingly.