Chisholm v. Inverness County (Municipality)

Chisholm v. Inverness County (Municipality) Court Court of Appeal Date 2004-12-02 Citation 2004 NSCA 144 Docket 225908 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice); Glube, Constance R. (Honourable Chief Justice) (CA); Oland, Linda L. (Honourable Justice) Document Type Decision Relations Library Sheet - Chisholm v. Inverness County (Municipality) - 2004 NSCA 144 - 2004-12-02 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Inverness (County) v. Chisholm, 2004 NSCA 144 Date: 20041202 Docket: 225908 Registry: Halifax Between: Anna (MacIntyre) Chisholm Appellant v. Municipality of the County of Inverness Respondent Judges: Glube, C.J.N.S.; Chipman and Oland, JJ.A. Appeal Heard: December 2, 2004, in Halifax, Nova Scotia Written Judgment: December 3, 2004 Held: Appeal dismissed per oral reasons for judgment of Chipman, J.A.; Glube, C.J.N.S. and Oland, J.A. concurring. Counsel: Robert H. Pineo, for the appellant Harold A. MacIsaac, for the respondent Reasons for judgment: [1] This is an appeal from a decision of Edwards, J. in Chambers allowing the application of the respondent Municipality for a declaration that properties of the appellant were dangerous or unsightly, and for an order specifying their demolition, pursuant to s. 347(1) of the Municipal Government Act, S.N.S. 1998, c. 18. The proceedings before the Council of the Municipality leading up to the application before Edwards, J. were protracted, lasting nearly 1½ years. During this time, the appellant had the benefit of guidance and legal advice from family members and had the benefit of adjournments in order to have an opportunity to remedy the situation. [2] The appellant appeared on April 2, 2004, at the initial hearing of the matter before Edwards, J. with a lawyer. The matter was adjourned by Edwards, J. until April 23, 2004, in order to give the lawyer time to prepare. Two days before the hearing the lawyer advised the Court by fax that the appellant no longer wished to retain him in the matter as she wished to represent herself. [3] At the hearing on April 23, 2004, Edwards, J. received an assurance from the appellant that she wished to represent herself, but as he was satisfied that she did not have relevant material then in the possession of her former lawyer, he adjourned the matter further until May 4th, 2004. He advised the appellant that if she wished to have a lawyer she should have the lawyer present by that time. He also indicated that he would require her former lawyer to appear at that time, as the appellant had questioned his assertion that she had discharged him. [4] On May 4th, 2004, the hearing resumed at which time the appellant’s former lawyer presented material to the court which satisfied Edwards, J. that he had indeed been discharged by the appellant. Edwards, J. was satisfied that she had not made sincere efforts to retain another lawyer, and the hearing continued with the appellant representing herself, assisted by a daughter. On May 25th, 2004, Edwards, J. filed his decision wherein he reviewed the evidence and found that properties at issue in the Municipality were dangerous and unsightly. He made a declaration accordingly, and ordered that the buildings should be demolished and the properties cleared of debris. The order giving effect to this decision was granted on June 11th, 2004. [5] The appellant appealed to this Court. In the notice of appeal, the grounds set out were that Edwards, J. erred in determining that the properties met the definition of dangerous and unsightly as found in s. 3(r) of the Act, and erred in imposing a remedy - demolition - that was unduly harsh and out of proportion with the circumstances. The notice of appeal also specified that other grounds might be relied upon after review of the transcript of the hearing. These other grounds have been advanced by the appellant in the form of three submissions that Edwards, J. had not conducted the hearing before him in accordance with the principles of natural justice. It was contended that: (i) Edwards, J. should have advised the appellant that she had a procedural right to a voir dire prior to the admission of the evidence of the building inspector and the fire inspector; (ii) that Edwards, J. erred in permitting the respondent to split its case by calling evidence from the building inspector to rebut material in the appellant’s affidavit ; and (iii) Edwards, J. erred in failing to give the appellant sufficient time to retain and instruct counsel, and by hearing certain solicitor-client privileged information from the former solicitor of the appellant when he explained the circumstances of his discharge at the hearing on May 4th. [6] In the appellant’s factum, counsel also withdrew the submissions that Edwards, J. erred in finding the premises to be dangerous or unsightly and that he erred in fashioning the remedy of demolition. He has focused his argument entirely upon the three alleged grounds of breach of the principles of natural justice at the hearing. [7] Following the submissions of counsel, we are satisfied that the hearing before Edwards, J. was conducted in accordance with the principles of natural justice. As to the first point, it is abundantly clear that the witnesses in question were not testifying as experts and no voir dire as to their qualifications was needed. As to the second, Edwards, J. was correct in permitting the respondent to call evidence to respond to the appellant’s affidavit which was tendered at the trial at the last minute and without proper notice to the respondent. As to the third, a review of the record and the decision of Edwards, J. renders it abundantly clear that the appellant had ample opportunity to retain and instruct counsel. Edwards, J. expressly found that the appellant had no intention to retain another lawyer after she discharged her previous counsel. No material solicitor-client privileged information was divulged at the hearing and, in any event, such information as was divulged was as a result of the appellant’s waiver of the privilege respecting it. [8] We are satisfied that Edwards, J. took pains to ensure that the appellant had every opportunity to retain counsel and, with or without counsel, to present her case to the Court. [9] The appeal is dismissed with costs which we fix at $500.00 plus disbursements. Chipman, J.A. Concurred in: Glube, C.J.N.S. Oland, J.A.