Lawson Estate v. Annapolis County (Municipality)

Lawson Estate v. Annapolis County (Municipality) Court Court of Appeal Date 1995-03-22 Citation 1995 NSCA 34 Docket CA 109887 Judge/Registrar/Adjudicator Clarke, Lorne O. (Honourable Chief Justice); Hart, Gordon L.S. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 109887 NOVA SCOTIA COURT OF APPEAL Cite as: Lawson Estate v. Annapolis County (Municipality), 1995 NSCA 34 Clarke, C.J.N.S.; Hart and Roscoe, JJ.A. BETWEEN: ) ) THE ESTATE OF MYRTLE LAWSON ) Douglas B. Shatford, Q.C. ) for the Appellant Appellant ) ) - and - ) ) THE MUNICIPALITY OF THE COUNTY ) W. Bruce Gillis, Q.C. OF ANNAPOLIS ) for the Respondent ) Respondent ) ) ) ) ) Appeal Heard: ) March 22, 1995 ) ) ) ) Judgment Delivered: ) March 22, 1995 THE COURT: The appeal is dismissed without costs as per oral reasons for judgment of Roscoe, J.A.; Clarke, C.J.N.S. and Hart, J.A., concurring. The reasons for judgment of the Court were delivered orally by: ROSCOE, J.A.: This is an appeal from a decision of Justice Carver of the Supreme Court who decided that the residence of the late Myrtle Lawson had not been designated pursuant to the provisions of the Social Assistance Act, R.S.N.S. 1989, c. 432. The decision appealed from is reported at 134 N.S.R. (2d) 176, so it is not necessary to repeat the facts as found by Justice Carver. The issues before him were: "(1) Whether the residence and property of the late Myrtle Lawson at Upper Granville is a "designated residence" pursuant to the Social Assistance Act? (2) If so, what is the extent of the designation in relation to the lands and property of Mrs. Lawson?" The relevant sections of the Social Assistance Act are set out on pages 178 and following of the reported decision. Justice Carver concluded: "There is no question that the property at Upper Granville was the residence of Mrs. Lawson. The first question is whether this residence was a designated residence pursuant to the Social Assistance Act. I find it was not a designated residence. In order to be a designated residence, the person in need before or after any assistance is given to him or her must designate his or her residence as a residence for the purpose of the Social Assistance Act. The recipient need not take the steps outlined in the guidelines set out by Social Services but the recipient must take some action that could be considered a designation. Here no such designation was made. It must be made by the person in need and not by a personal representative after that person's death. I therefore find the Municipality of Annapolis can attach this property to satisfy its claim. In answer to Issue #2, even if I found the residence was a "designated residence", I would have limited same to the area upon which the dwelling and out‑buildings were situate together with some property surrounding same in an approximate amount of one‑two acre. The amount of land included would depend upon the circumstances in each case. In my opinion, a "designated residence" would not extend to include the whole sixty acre farm in this case. I direct each party bear their own costs." Justice Carver made a finding of fact on the evidence before him that the residence was not designated and we have not been persuaded that he erred in doing so. We agree with Justice Carver that the Act requires some specific action to be taken by the person in need in order to constitute a designation. The appellant, in effect, wishes us to set aside findings of fact by the trial judge. Conclusions of fact cannot be disturbed unless they are perverse, or clearly wrong, or unless the trial judge made some " palpable and overriding error" to use the words of Mr. Justice Ritchie in Stein Estate et al. v. Ship "Kathy K" et al. (1975), 6 N.R. 359 (S.C.C.), at page 366. There is no such error here. Accordingly the appeal is dismissed without costs. Roscoe, J.A. Concurred in: Clarke, C.J.N.S. Hart, J.A.