Inverness (County) v. Chisholm

Inverness (County) v. Chisholm Court Supreme Court Date 2004-05-21 Citation 2004 NSSC 98 Docket 217456 Judge/Registrar/Adjudicator Edwards, Frank C. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Inverness (County) v. Chisholm, 2004 NSSC 98 Date: 20040521 Docket: 217456 Registry: Port Hood Between: Municipality of the County of Inverness, a body corporate pursuant to the Municipal Government Act, S.N.S., 1998, Chapter 18 Plaintiff v. Anna (MacIntyre) Chisholm Defendant Judge: The Honourable Justice Frank Edwards Heard: April 2, 23 and May 4, 2004, in Port Hood, Nova Scotia Counsel: Harold MacIsaac, Esq., for the Plaintiff Anna (MacIntyre) Chisholm, for the Defendant (assisted by her daughter, Marcella Chisholm) By the Court: [1] This is an application for a declaration that the properties of Anna (MacIntyre) Chisholm at 115 and 116 Central Avenue and 213 and 32 MacKenzie Avenue, Inverness, Nova Scotia are dangerous and unsightly and for an order that the buildings thereon be demolished and the properties cleared of all debris. [2] Preliminary Issue (Legal Representation): The hearing was originally scheduled for Port Hood on April 2, 2004. On that date the Defendant appeared with Counsel, Mr. Donnie Doucet. Mr. Doucet advised he had just been retained (although Ms. Chisholm had been served on March 18, 2004) and needed time to prepare. I adjourned the matter until April 23, 2004. [3] On Wednesday, April 21, 2004, I received a fax letter from Mr. Doucet. The letter reads in part as follows: “1. The Defendant, Anna (MacIntyre) Chisholm no longer wishes to retain me in this matter. It is the Defendant’s request that I be released as her solicitor of record; 2. The Defendant intends to appear in person in Port Hood on April 23, 2004 and represent herself in Court. My understanding is that the Defendant will not be requesting any further adjournments and will ask that the matter proceed on April 23, 2004; 3. The Defendant does not want me to appear in Court in Port Hood on April 23, 2004;” [4] Mr. Doucet requested a telephone conference with me wherein he repeated what he had said in the letter. I gave him permission not to appear on April 23. [5] At the outset of the hearing on April 23, I told Ms. Chisholm I had received Mr. Doucet’s letter (which had been copied to her) and asked her to confirm that she wished to represent herself. She replied in the affirmative without qualification or hesitation. I proceeded with the hearing and allowed Ms. Chisholm’s daughter Marcella to assist her mother. [6] Marcella Chisholm did most of the questioning. She appeared to have been prepared to do so and referred to notes she had apparently made in advance. It was not until she was questioning the third witness (Leon LeBlanc) that I realized that she did not have the copies of the affidavits with which her mother had been served. She then advised that the affidavits were still in Mr. Doucet’s possession. I permitted her to finish questioning Mr. LeBlanc. [7] At this stage, I queried the fact that Ms. Chisholm had not submitted any affidavits. She advised that her position is contained in the affidavits submitted by the Plaintiff. Indeed, the Plaintiff did attach to its affidavits much of the information received on Ms. Chisholm’s behalf throughout the extensive municipal council proceedings. Ms. Chisholm advised that she had expected Mr. Doucet to bring the affidavits or at least provide them to her. In the discussion which ensued, I took it that Ms. Chisholm was questioning Mr. Doucet’s advise in his April 21 letter that she wished to proceed without a lawyer. [8] I adjourned the matter until May 4, 2004. I advised Ms. Chisholm that if she wanted to have a lawyer she should have the lawyer present on May 4. I also told her that if she wished to file affidavit evidence she should do so by Friday April 30, 2004. I told her there would be no further adjournments. I also indicated that I would be requiring Mr. Doucet to appear. [9] On Tuesday, April 27, 2004, I faxed the following letter to Mr. Doucet: “This is further to your letter of April 21, 2004 and subsequent telephone conference. On April 23, in Court at Port Hood, Ms. Chisholm said, contrary to your letter, that she did not wish to proceed on her own. She was less clear about whether or not she had wanted you to appear. Further, she stated that you still had all the affidavits and attachments with which she had been served and which she required to proceed. I had to adjourn the hearing until Tuesday, May 4, 2004 in Port Hood. Please contact Ms. Chisholm and make the affidavits available to her at once. I would also like you to appear on May 4 to clarify on the record the circumstances that led to your April 21 letter. I have instructed Ms. Chisholm to retain another lawyer.” [10] On Tuesday, May 4, 2004, I resumed the hearing. Mr. Doucet presented an e-mail he had received on Monday, April 19, 2004, from Ms. Chisholm’s son, James Chisholm. James Chisholm is a lawyer who has been providing his mother with advice and guidance throughout her dealings with the Municipality and in this application. The relevant portion of the e-mail reads: “2. she intends to represent herself from this point on, especially to appear in court in person on this coming Friday, April 23, 2004, when the Municipality’s application, which was adjourned from Friday, April 2, is to be heard; ...” [11] The e-mail is obviously consistent with what Mr. Doucet advised me in his April 21, 2004 fax. Mr. Doucet detailed the difficulty he had in communicating directly with Ms. Chisholm. I also heard from Ms. Chisholm. Having heard both sides, I am convinced that Ms. Chisholm had released Mr. Doucet and had decided to proceed without legal counsel. [12] I then asked Ms. Chisholm whether she had attempted to retain another lawyer. She said she had called Halifax lawyer, Anne Derrick, who, Ms. Chisholm says, advised her she did not work in this area. Ms. Chisholm said she had also phoned the Attorney General Michael Baker and a lawyer in Cheticamp. She says neither returned her calls. I am satisfied that Mr. Chisholm’s professed effort to retain another lawyer was not sincere. I am satisfied that she had no intention to retain another lawyer after she released Mr. Doucet. Ms. Chisholm obviously believes she has all the legal assistance she requires through her son James Chisholm (who resides out-of-province). I am satisfied that her appearance without counsel has nothing to do with the brevity of the adjournment (April 23 - May 4) nor with the fact that she had not retrieved her retainer from Mr. Doucet. [13] In view of the above, I continued the hearing on May 4. Marcella Chisholm confirmed that she had picked up the Applicant affidavits from Mr. Doucet on Monday, April 26, 2004. Despite her submission to the contrary, I am satisfied that she had ample time to review them and was well aware of their contents. I gave her an opportunity to question witnesses further and to make an oral submission. [14] I also permitted Ms. Chisholm to file an affidavit by her mother. Marcella Chisholm confirmed that the affidavit had been prepared by her lawyer brother James Chisholm. Counsel for the Municipality objected to paragraph 11. Paragraph 11 reads: “11. THAT the purpose of this affidavit is to emphasize to the Municipality and to this Honourable Court that the actions taken against my properties by the Municipality amount to a breach by the Municipality of its statutory duty specified in section 344 of the MGA and an attempt to take appallingly unfair advantage of an apparently helpless seventy-eight year old widow in a surprise, brutal, and vindictive manner by the Municipality on the basis of undisclosed complaints by unidentified persons, in violation of any civilized system of fundamental fairness, equity, natural justice, and equality before the law which one would expect to apply in a self-styled ‘free and democratic’ society.” The impugned paragraph was clearly inappropriate and I ordered it struck. [See Waverley (Village Commissioners) et al v. N.S. (Minister of Municipal Affairs) (1993), 123 NSR (2d) 46 (S.C.)] [15] Statutory Framework: Section 347(1) of the Municipal Government Act, S.N.S., 1998, Chapter 18 (hereinafter the “MGA”) which reads as follows: “347(1) A municipality may apply to a court of competent jurisdiction for a declaration that a property is dangerous or unsightly and an order specifying the work required to be done to remedy the condition by removal, demolition or repair. (2) The court may order any property found to be dangerous or unsightly to be vacated until the condition is remedied. (3) The court may, where any property is found to be dangerous or unsightly, order that no rent becomes due, or is payable by, any occupants until the condition is remedied.” [16] The term “dangerous or unsightly”is defined in Section 3(v) of the MGA as follows: “3®) “dangerous or unsightly” means partly demolished, decayed, deteriorated or in a state of disrepair so as to be dangerous, unsightly or unhealthy, and includes property containing (I) ashes, junk, cleanings of yards or other rubbish or refuse or a derelict vehicle, vessel, item of equipment or machinery, or bodies of these or parts thereof, (ii) an accumulation of wood shavings, paper, sawdust, dry and inflammable grass or weeds or other combustible material, or (iii) any other thing that is dangerous, unsightly, unhealthy or offensive to a person, and includes property, a building or structure (iv) that is in a ruinous or dilapidated condition, (v) the condition of which seriously depreciates the value of land or buildings in the vicinity, (vi) that is in such a state of non‑repair as to be no longer suitable for human habitation or business purposes, (vii) that is an allurement to children who may play there to their danger, (viii) constituting a hazard to the health or safety of the public, (ix) that is unsightly in relation to neighbouring properties because the exterior finish of the building or structure or the landscaping is not maintained, or (x) that is a fire hazard to itself or to surrounding lands or buildings, (xi) That has been excavated or had fill placed on it in a manner that results in a hazard;” [17] Facts: The relevant facts were well summarized by Plaintiff’s Counsel in his submitted Memorandum. The properties, located at 115 and 116 Central Avenue and 213 and 32 MacKenzie Avenue, Inverness, are both duplex type or "Company houses". They were inspected by Building Inspector, Cyril LeBlanc, who made reports to his Director, John Bain, dated July 17, 2002, and July 18, 2002. [18] Regarding the Central Avenue properties, he referred to unstable, free standing chimneys, neglected lawns (which in late summer could become a fire hazard), moss on the porch roof, tree branches hanging over it, oil tank supported by a wood framework, information from the owner of break‑ins in the house, and water leaking beneath the home, abandoned oil tanks and abandoned stove leaning against an outbuilding, debris on the front porch, fence falling down, windows broken, and a need of exterior finish. [19] The building inspector’s report was accompanied by a number of photographs evidencing his description and revealing a badly deteriorated structure. [20] Referring to the MacKenzie Avenue properties, the building inspector stated that it too was unsightly, that it was not feasible for the owner to attempt to repair it or to remedy its unsafe condition. He referred, in his notes, to some of the same conditions as found at the Central Avenue property, "old shed, power from house, grass not mowed, moss on roof, broken chimney, rotten fascia, tree branches laying on roof, power connected". [21] This report was also accompanied by a number of pictures again showing a building in a seriously deteriorated condition. It should be noted that both buildings have been vacant for some time. [22] Notices of Hearing, for September 3, 2002 before Council, were given to Anna MacIntyre Chisholm on August 19, 2002 and posted on the properties on the same date. [23] Anna Chisholm and her daughter appeared before Council on September 3, 2002, protesting any consideration of demolition of these houses. A number of written representations were received from family members to the same effect. [24] Anna Chisholm's son, James Chisholm, took the lead in these representations and requests. There followed adjournments to the monthly meetings of Council in October, November and December, 2002. In the December meeting, in deference to the requests of the Chisholm family, Council adjourned the matter to April 1, 2003, to afford them an opportunity to present a proposal to bring the premises into compliance with the MGA. [25] When no proposal was received by April 1, 2003 Council, notice of such was given to James Chisholm. More correspondence followed with James Chisholm but no work was done on the premises. [26] In the July 14, 2003 meeting of Council, a further report was received from the Building Inspector, Cyril LeBlanc. [27] Once again, the Inspector refers to tall, free standing chimneys that concerned him, and water or sewer leakage into her home. He recounted Anna Chisholm's declared intentions to paint the buildings and cover over the broken windows. Regarding both properties, he had concerns about the interior which he wasn't able to inspect. [28] As no reasonable progress seemed to have happened regarding the premises during the summer months and September and October, 2003, Anna MacIntyre was again given notice by registered mail dated October 7, 2003, that Council would be considering action on her properties at the November 3, 2003 meeting of Council. James Chisholm was also given notice on October 14, 2003. [29] At the November 3, 2003 meeting of Council, Cyril LeBlanc gave a report dated October 17, 2003. He referred to his request to inspect the interior of the buildings, which was turned down by Anna Chisholm. He, again, expressed his concern about the tall, free standing chimneys. Aside from some painting referred to in an earlier report, nothing much had been done. [30] At the November 3, 2003 meeting of Council, Leon LeBlanc, the Fire Inspector for the Rural Cape Breton District Planning Commission, also gave a report based on his inspection of the properties on October 31, 2003, along with the Director, John Bain, and the Building Inspector, Cyril LeBlanc. [31] Leon LeBlanc's report sets out the following eleven concerns respecting the dangerous and unsightly condition of the properties: 1. This building is unsecured as there are several windows broken, which would provide easy access for someone to enter. 2. Doors to the rear of the building on Central Ave., are unsecured leading to the back room with firewood stored inside, piles of paper, damaged ceiling and other material scattered all over the floor area increasing the fire load to this building. 3. Chimneys in both buildings are showing sign of decay, deterioration, also strong indications that they are about to collapse; they certainly cannot be used for solid fuel burning appliances or oil burning appliances. 4. The wood-burning appliance, which is connected to one of those chimneys on the Central Ave. property, cannot be used under any circumstances; this room is also full of material that will certainly increase the fire load to this building. 5. Oil tanks to both buildings showing sign of decay, deterioration, and do not comply with CAN/CSA-B139 for the installation of oil burning equipment. 6. Window wood frames are so decayed that a sharp instrument can penetrate the wooden frame without applying any effort. 7. Both roofs are in the concave position this would be a strong indication that the roof members are weak and unsafe. 8. As noted above the roofs are at a point that the entire roofs to both buildings would have to be replaced. 9. These buildings were not supported on a concrete foundation wall, wood sill plate which serves as the foundation are all decayed, rotten and they would have to be all replaced. 10. Add-on porch at the rear of building and sun deck at the front are coming away from the main building due to lack of support. 11. Tar paper on the exterior walls used to replace missing wood shingles. [32] Obviously, the foregoing present a description of rather severely dilapidated buildings which fall within the definition of "dangerous or unsightly" in the MGA. [33] Council voted at the November 3, 2003 meeting that a Demolition Order be issued for both premises. [34] At the request of James Chisholm, the Council heard further from the Chisholm family, particularly James Chisholm who attended the December 1, 2003 meeting of Council, where he requested a delay of demolition and put forward proposals to clean up the properties beginning in the Spring of 2004. [35] The Council requested the Building Inspector, Cyril LeBlanc, to assess their proposals and report further to Council. Mr. LeBlanc did so on January 5, 2004, by a report dated December 11, 2003. He was skeptical about the validity and feasibility of the proposals put forward by the Chisholm family and expressed serious concerns about the dangers of possible injury to other persons or their property that could take place in the meanwhile. He had no doubt about the unsightly condition of the buildings. [36] Mr. LeBlanc advised that, if the Council were going to consider a delay in the demolition of the buildings, there were certain emergency matters which should be attended to immediately: 1. To take down the free standing chimneys; 2. To clear up the debris around the homes; 3. Not to use the inside for any storage of furniture or other material so as to lessen the fire hazard; [37] Council advised the Chisholms and their solicitor that, if these emergency requirements were met by the next Council meeting on February 2, 2004, that consideration would be given to the request to delay the demolition for which Orders were posted on the properties on January 2, 2004. At the February 2nd meeting of Council, Cyril LeBlanc reported that nothing further had been done. [38] Due to the fact that the Chisholms' solicitor had reported to the February 2, 2004 meeting of Council that a contractor was being retained by the Chisholms to carry out the emergency recommendations, no final decision was made at the February 2nd meeting, but was adjourned to the next meeting on February 9, 2004. [39] When it was reported at the February 9, 2004 meeting that nothing further had been done, Council gave directions to seek this Order before proceeding to demolish the premises. [40] During the hearing before me, it was clear that the Defendant's position was that she had been unfairly targeted by the Municipality and that she should be given more time to bring the properties up to an acceptable standard. [41] The Defendant argued that there were many other properties throughout the County which were in as bad, or worse, condition than hers. During her cross‑examination of building inspector LeBlanc, Marcella Chisholm attempted to introduce a large album of photographs she had recently taken. The photographs depicted many other buildings scattered throughout the County which, in Ms. Chisholm’s opinion, were in a condition as bad or worse than the subject properties. Mr. LeBlanc noted that enforcement under the Act is complaint driven and that they had received complaints about the Chisholm properties. Over the Plaintiff’s objection I ordered that the identities of the complainants be disclosed. On the other hand, I ruled that the photographs were irrelevant to this proceeding. Given the resources of the Municipality, the complaint driven enforcement policy is reasonable. [42] The photographs in question were not being tendered by Ms. Chisholm to show that the properties were comparable to neighbouring properties. [See MGA s. 3 (r)(ix)] As I have said, the photos were intended to show that other properties in the municipality also warranted action. There are several photographs in evidence showing neighbouring properties which are apparently well maintained. [See Affidavit of Cyril LeBlanc (attached photos) and photo number 7 attached to Affidavit of Leon LeBlanc.] [43] Kate Beaton is the CEO of the Municipality. During her cross-examination by Marcella Chisholm, she noted that two other property owners had been given notice of unsightly premises. In one case, the Municipality proceeded with demolition while, in the other, the owner carried out repairs. [44] The Defendant tried to make much of the fact that the Municipality sold her one half of the MacKenzie Avenue property in its present condition. Kate Beaton’s uncontradicted evidence was that that sale had been initiated by the Defendant. The Municipality was the reluctant owner of the property it acquired as the result of a tax sale. She said Ms. Chisholm expressed strong interest in getting the property as she already owned the other half of the duplex. Further, the Municipality sold the property on the understanding that it was to be upgraded by members of the Chisholm family. I accept Ms. Beaton’s evidence as accurate. Ms. Chisholm’s argument that she was unfairly targeted is completely without foundation. [45] Conclusion: I am also satisfied that Ms. Chisholm has had adequate opportunity to make the necessary improvements to the properties. This matter has been going on for almost two years. The Municipality have been more than fair. Ms. Chisholm has made no more than a token effort to improve the properties. [46] I am satisfied that the buildings and premises as described in the reports of Cyril LeBlanc and Leon LeBlanc, and shown in the photographs attached to each, are clearly dangerous and unsightly within the definition of those terms as set out in the MGA and that there is no reasonable expectation that the owner can, or will, remedy their condition. I therefore declare them to be dangerous and unsightly. I am ordering that the buildings be demolished and the properties cleared of debris. [47] Counsel for the Plaintiff may make a written submission on costs by June 4, 2004. Ms. Chisholm will then have until June 14, 2004 to respond in writing. Order accordingly. J.