Conrad v. Halifax County (Municipality)

Conrad v. Halifax County (Municipality) Court Court of Appeal Date 1994-04-05 Citation 1994 NSCA 69 Docket CA 02923 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice); Clarke, Lorne O. (Honourable Chief Justice); Pugsley, Ronald N. (Honourable Justice) Document Type Decision Decision Content C.A. No. 02923 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.; Chipman and Pugsley, JJ.A. Cite as: Conrad v. Halifax County ( Municipality), 1994 NSCA 69 BETWEEN: FAYE CONRAD and ADAM CONRAD, ) Vincent Calderhead infant children, by Lorraine Elizabeth Conrad, ) Lola Gilmer their guardian ad litem, and LORRAINE ) for the Appellants ELIZABETH CONRAD. ) Appellants ) ) - and - ) Jamie S. Campbell ) for the Respondent THE MUNICIPALITY OF THE COUNTY ) OF HALIFAX, PROVINCE OF ) NOVA SCOTIA ) Respondent ) Appeal Heard: ) March 17, 1994 - and - ) ) NATIONAL ANTI-POVERTY ORGANIZATION ) ) Judgment Delivered: ) April 5, 1994 Intervenor ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed from decision of trial judge relative to eligibility for social assistance and s. 7, Charter protection for economic rights, per reasons for judgment of Clarke, C.J.N.S., Chipman and Pugsley, JJ.A. concurring. CLARKE, C.J.N.S.: This is an appeal from the decision of Justice Gruchy reported in (1994), 124 N.S.R. (2d) 251. The grounds essentially relate to the "fairness" to the appellants by which the trial was conducted based upon the pleadings which had been filed. The issue at trial was whether a temporary deprivation of municipal social assistance without a hearing is a violation of s. 7 of the Charter of Rights and Freedoms, justifying an award of general damages under s. 24(1). The finding of the trial judge against the appellants on the constitutional issue is not a subject of this appeal. Mrs. Conrad and her family began receiving municipal assistance on January 25, 1989 as a "deserted wife" after her husband left the family home following a domestic dispute. On two occasions the financial assistance was discontinued because the respondent determined Mr. Conrad was residing at the family home. Each time assistance was reinstated following negotiations between counsel of the appellants and the then counsel of the respondent. Each reinstatement was retroactive to the cut-off date. As a result Mrs. Conrad was paid the full amount of assistance for her entire period of eligibility. Justice Gruchy held that Mrs. Conrad did not establish a right to continued social assistance since she did not meet the eligibility requirements of the Social Assistance Act, R.S.N.S. 1989, c. 432 and related regulations. As a result, he decided there was no violation of the s. 7 right to "security of the person". He also denied compensation on the basis that s. 7 does not provide protection against economic interests. The First Ground of Appeal The first is that the trial judge erred in deciding the constitutional issue on the basis of an issue not pleaded. This relates to his finding that the appellants were not legally entitled to the receipt of municipal assistance. The appellants argue that the focus of the pleadings was on the "fairness or reasonableness" of the decisions made by the respondent to terminate social assistance. That Justice Gruchy decided the matter based on Mrs. Conrad's eligibility for assistance came as a surprise. The appellants thought that eligibility was assumed since reinstatement of assistance was restored voluntarily by the respondent. This surprise, argue the appellants, was so unfair that it was an error of law. The respondent asserts that the conclusion reached by the trial judge that economic rights are not protected by s. 7 of the Charter decided the issue. Although entitled to make a finding on the legality of the municipal assistance received by the appellants, the respondent says the trial judge's finding in that respect was not, by itself, determinative of the constitutional issue. A review of the record reveals that the trial judge relied on two separate and independent grounds in determining that no s. 7 violation occurred. One of these, as earlier noted, concerning his conclusion that the appellants' economic rights are not entitled to Charter protection is not under appeal. It is the second, relating to his finding that the appellants failed to meet the test of eligibility that is under attack. A deserted wife who is entitled to social assistance for herself and her family is one with whom there is no cohabitation with her husband during the period of desertion. Paragraphs 8 and 10 of the appellants' (plaintiffs) statement of claim stated: "8. On August 30, 1989, the Defendant's employees wrote to the Plaintiff, Lorraine Elizabeth Conrad, informing her that assistance from September, 1989 onward would not be provided as the Defendant believed that the Plaintiff's husband had resumed cohabitation with her. ... 10. The Defendant's allegation that the Plaintiff's husband had resumed cohabitation with her was false;" In their amended statement of claim, the appellants (plaintiffs) said in paragraph 4: "4. In early 1989 the Plaintiff, Lorraine Elizabeth Conrad, separated from her husband, Curtis Conrad and has at no time resumed cohabitation with him." The respondent (defendant) in its defence to the statement of claim stated in paragraph 4: "4. With respect to paragraph 8 of the Statement of Claim, the Defendant states that at various times between January and July of 1989, a neighbour of the Plaintiff attended at the offices of the Defendant and advised on each occasion that it was his belief that the Plaintiff's husband had resumed cohabitation with the Plaintiff. As a result of those representations and an investigation by the Defendant, the assistance provided to the Plaintiff was discontinued in September, 1989." The respondent (defendant), in its defence, admitted certain of the allegations contained in the statement of claim. It did not admit those which are reproduced above. It follows that the matter of cohabitation was not admitted by the respondent (defendant) prior to trial. This gave the subject of cohabitation the potential to become a live issue at trial. Evidence relating to the assertions made in the statement of claim and amended statement of claim was led by the plaintiffs (appellants) at trial. For example, on this issue, the following is an excerpt of the evidence given by Mrs. Conrad on direct examination: " Q. And if I could just move it ahead Lorraine to the end of August, if I could have you look at tab 8. This is a letter dated August 30th '89 from the County of Halifax. Do you remember that letter? A. Yes, I do. Q. A letter indicating that your assistance had been cut off? A. Yes. Q. And the suggestion in the letter was, is that it was based on - A. It's a letter from Heather saying that I wasn't going to get no more social assistance because my husband was living with me. Q. Was he? A. No, he wasn't." The appellants argue that by placing the issue of eligibility bearing upon the legality of the assistance that was provided took them by surprise and was unfair. Counsel refers to several cases where courts have approved the theme of fairness and disclosure in the trial process. Here the appellants allege the respondent should have expressly made it clear in the proceedings or at the pre-trial conference, or both, that eligibility or the legality of the assistance provided by the respondent was in issue. Failing to do so, they submit, took them by surprise. It seems apparent from the face of the pleadings that the appellants unequivocally stated no cohabitation occurred during the material times. This, not having been specifically admitted by the respondent, left the matter in issue. In addition the credibility of a witness is always in issue. Given these circumstances it cannot be said that it was unfair or improper for the defendant (respondent) to call evidence which contradicted the allegations made by the plaintiffs (appellants). It was thus left open for the trial judge to decide. Justice Gruchy found on the evidence that Mrs. Conrad "deliberately misled the county concerning Mr. Conrad's address", continued to do so during the time she received assistance, and that Mr. Conrad was a frequent visitor to the family home for considerable periods of time. He determined she did not establish a right to continued social assistance since she did not meet the eligibility requirements of the Social Assistance Act and its related regulations. He reviewed the statutory scheme of the Act and its regulations by referring to and relying on the decision of this court in Carvery v. Halifax (City) et al (1993), 123 N.S.R. (2d) 83. He found the denial of interim assistance pending a proper hearing was not a violation of her constitutional rights because she negotiated, through counsel of both parties, a reinstatement and continuation of her assistance rather than asserting her right to a hearing by way of the appeal process provided by the Act and regulations. Even though Justice Gruchy decided the issue of eligibility against the appellants, a review of his reasons for judgment reveals that the ultimate result would not have depended exclusively on this ruling. The fact is that he found the action also failed on constitutional grounds. From reading his judgment the reasonable conclusion is that even if he had found the assistance payments were legal or had disregarded that issue altogether, the appellants would still have lost their case on the s. 7 Charter issue. Therefore I am unable to agree with the contention of the appellants that the constitutional issue was decided on the basis of an issue which was not pleaded. The Second and Third Grounds The second is that the trial judge erred in basing eligibility to receive assistance on the failure to provide an alternate address for Mr. Conrad. The third is that he erred in his finding that Mr. Conrad was living on various and sundry occasions with the appellants during the times material to the receipt of social assistance. The appellants contend that on these matters the trial judge exceeded his jurisdiction, engaged upon a fact finding mission of his own and as a result arrived at findings that were unreasonable and not supported by the evidence. The respondent, on the other hand, argues that it was necessary for the trial judge to make these inquiries in order to arrive at a proper determination of eligibility. I am unable from a review of the record to determine that if in fact the trial judge made any errors of the nature alleged by the appellants that they were of such a palpable or overriding nature that interference by this court is warranted. The Fourth and Fifth Grounds The fourth is that the evidence of Elizabeth Thompson should not have been admitted by the trial judge. Mid-way through the trial Elizabeth Thompson, a person who lived in the environs of the appellants, arrived at court without having been called as a witness. She was previously unknown to either counsel. She wanted to give evidence to the effect that Mr. and Mrs. Conrad had been cohabiting, thereby going to the issue of eligibility. Counsel of the respondent informed counsel of the appellants of her presence and desire to testify. The trial judge heard her evidence during the afternoon. He states in his decision that he found her to be a credible witness. He obviously placed reliance on her testimony. The appellants argue that her evidence was inadmissible because it could not be used by the respondent to support a defence that at the times social assistance was terminated, the respondent believed that it was acting reasonably in so doing. The respondent contends that the evidence of Mrs. Thompson was relevant to the issues of cohabitation and the credibility of Mrs. Conrad's evidence of denial of cohabitation. There is no evidence to indicate anything other than the arrival of Mrs. Thompson was a surprise to both counsel. There is nothing to suggest that counsel for the respondent was holding Mrs. Thompson in the wings or that he was engaging in some trick or unfair tactic. She simply appeared wanting to be heard. In the circumstances counsel had an obligation to inform the court of her presence and mission. It was clearly within the discretion of the court to hear her since her evidence touched on matters perceived to be an issue at the trial. The fifth ground also relates to Mrs. Thompson. The appellants allege the trial judge erred by failing to give their counsel an opportunity to discover Mrs. Thompson before she gave her evidence. After being informed that Mrs. Thompson would not talk to anyone other than giving her evidence in Court, he declined to grant an adjournment for discovery. The trial judge acted within his discretion in having her evidence heard. She was cross-examined by counsel of the appellants. I would not allow the fourth and fifth grounds of appeal on the basis that the trial judge committed errors in law. Grounds Six and Seven The sixth is that the trial judge erred by failing to make findings of fact based on the evidence of Faye Conrad, the daughter of Lorraine Conrad. The appellants say that if the trial judge was not going to accept the evidence of Lorraine Conrad, then it was incumbent on him to consider the evidence of Faye Conrad and reflect his consideration of her evidence in his reasons for judgment. It is a well accepted principle that a trial judge does not have to comment on the evidence of each and every witness giving testimony at trial so long as the record reveals that the trial judge grasped the significance of all the evidence which was adduced and made findings which were supported by evidence given at trial. That, in my view, is applicable to this situation even though the trial judge did not specifically analyze the evidence of Faye Conrad in his reasons for judgment. The seventh is that he erred in admitting the evidence of Carolyn Vaughan, a Loans Officer of the Royal Bank of Canada. She testified Mr. and Mrs. Conrad came to the bank together to apply for a loan to assist their son in purchasing a motor vehicle. The appellants say this was prejudicial evidence because it had no bearing on the decision of the respondent to terminate social assistance. I am not satisfied from a review of the record that even if either or both of the sixth and seventh grounds were allowed, they would determine the outcome of this appeal. The trial judge thoroughly canvassed the issues which were before him. It is not for this Court to retry them. Conclusion I would dismiss the appeal without costs to either party. The intervenor filed a factum. It was not represented at the hearing of the appeal. C.J.N.S. Concurred in: Chipman, J.A. Pugsley, J.A.