DATE: 20010831 DOCKET: C33810
COURT OF APPEAL FOR ONTARIO
RE:
WIGHT MILLING LIMITED (Appellant/Defendant by Counterclaim) –and– THE CORPORATION OF THE VILLAGE OF BLOOMFIELD, GERALD NYMAN and NYLOLAYNE FARMS LTD. (Respondent/Plaintiff by counterclaim/Appellant by cross-appeal)
BEFORE:
OSBORNE A.C.J.O., FINLAYSON and WEILER JJ.A.
COUNSEL:
Robert J. Reynolds, for the appellant
L. Thomas Forbes, Q.C., and Thomas N.T. Sutton, for the respondent, The Corporation of the Village of Bloomfield (now the Corporation of the County of Prince Edward)
HEARD:
August 28, 2001
RELEASED ORALLY:
August 28, 2001
On appeal from the judgment of Justice John D. O’Flynn dated February 4, 2000.
E N D O R S E M E N T
[1] Wight Milling Limited (“Wight Milling”) appeals from the judgment of O’Flynn J. affirming the sale of surplus land by the Corporation of the Village of Bloomfield (the “Village”).
[2] Prior to the sale of the land, the Village passed By-law #781. That by-law required Council to obtain an appraisal of the land, then give notice to the public and request tenders. Instead, although the request for an appraisal was made, notice to the public requesting tenders was given and tenders were received prior to the actual appraisal being furnished to the Village. It is conceded that the Village acted in good faith throughout.
[3] The appellant requested a review of the sale pursuant to s. 193(5) of the Municipal Act. Section 193(5) states:
(5) The manner in which the council or local board carries out the sale of its property, if consistent with the procedures by-law and this section, is not open to question or review by any court if the council may lawfully sell the property, the purchaser may lawfully buy it and the council acted in good faith.
[4] O’Flynn J. held that the error in procedure was of a purely technical nature and not fatal to the process respecting the sale of the land. He held that the sequence of the procedures did not matter so long as all procedures took place. In effect, O’Flynn J. held that the actions of council were consistent with the by-law. Alternatively, he exercised his discretion on review and, since the error was procedural in the circumstances of this case, decided not to set aside the sale of the land.
[5] We agree with the trial judge that, in the circumstances of this case, the order in which the procedures required by the by-law did not matter. All required procedures did take place and the sale must be upheld.
[6] The appellant also submits that the sale is flawed because the appraisal was for the land only, whereas the sale is for the land and chattels. This submission was also not raised in the pleadings although submissions were made in argument. Although the municipality obtained an appraisal for the land only, both bidders were told to tender for both the land and chattels. There is no statutory authority requiring an appraisal for the sale of chattels. It is purely speculative to suggest that the true value of the chattels reduced the value of the land to a price below the appraised value. What evidence there is, is to the contrary. We see no merit in this ground of appeal.
[7] The appeal is therefore dismissed.
[8] The Village raises a further issue by way of “cross-appeal”. The trial judge awarded the Village the costs of keeping up the interest on the mortgage on the property to the date of trial. The Village requests that interest accrued on the mortgage on the property continue to the closing of the sale. That request is granted.
[9] Costs of the appeal are on a party-and-party basis to the Village. No costs with respect to the cross-appeal.
Signed: “C.A. Osborne A.C.J.O.”
“G.D. Finlayson J.A.”
“K.M. Weiler J.A.”