C.A. No. 121940
NOVA SCOTIA COURT OF APPEAL
Cite as: Aloni v. Chester (District), 1996 NSCA 83
Clarke, C.J.N.S.; Hart and Chipman, JJ.A.
BETWEEN:
PHILON JACOB ALONI ) The Appellant in Person
)
Appellant )
- and - )
) Samuel R. Lamey
) for the Respondent
THE MUNICIPALITY OF THE )
DISTRICT OF CHESTER )
)
Respondent ) Appeal Heard:
) February 13, 1996
)
)
) Judgment Delivered:
) March 15, 1996
)
)
)
)
)
)
)
)
THE COURT: Appeal dismissed from conviction for an offence contrary to the Municipal Act concerning unsightly premises, per reasons for judgment of Clarke, C.J.N.S., Hart and Chipman, JJ.A. concurring.
C.A. No. 121940
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
PHILON JACOB ALONI )
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
THE MUNICIPALITY OF THE )
DISTRICT OF CHESTER )
) CLARKE, C.J.N.S.
)
Respondent )
)
)
)
)
)
)
CLARKE, C.J.N.S.:
The appellant, Mr. Aloni, appeals from his conviction of owning or occupying property found to be in an unsightly condition contrary to s. 124(1) of the Municipal Act, R.S.N.S. 1989, c. 295.
Section 124(1), as it was on May 30, 1994, the date of the alleged offence, provided:
No person shall permit property, owned or occupied by him, to be or to become partly demolished, decayed or deteriorated so as to be in a dangerous, unsightly or unhealthful condition, or shall permit to remain on any part of property, owned or occupied by him, any ashes, junk, cleanings of yards, bodies or parts of automobiles or other vehicles or machinery, or other rubbish or refuse, so as to cause such place to be dangerous, unsightly, unhealthful or offensive to all or any part of the public.
Mr. Aloni's property is in Blandford, Lunenburg County. Michael Publicover lives to the rear of Mr. Aloni. Mr. Publicover purchased his property in 1977. He gains access to his house and land by travelling on a private road over which he (Mr. Publicover) has a right of way granted many years ago to his predecessors in title. It leads to the public highway after passing through the property owned and occupied by Mr. Aloni.
Mr. Publicover contended that Mr. Aloni permitted his property to become unsightly. The alleged unsightliness cannot be seen from the public highway. It can only be seen by those who travel on the private and shared access road.
Mr. Publicover complained to the respondent, The Municipality of the District of Chester. The Municipality served Mr. Aloni with a notice giving him thirty days to clean up the property. When the notice period expired, the respondent, in the name of the
Queen, charged Mr. Aloni that on or about May 30, 1994, at Blandford, he "did permit property, owned or occupied by him, to be in an unsightly condition, contrary to s. 124 of the Municipal Act..".
The matter came to trial before Associate Chief Judge Kennedy of the Provincial Court. He found that Mr. Aloni occupied the property and that the correct "process prerequisite to prosecution" had been followed. After hearing and considering the evidence and viewing the photographs of the buildings, materials and automobiles on the property, and being aware of the standard "to which most such properties are kept in rural Lunenburg County", Judge Kennedy found as a fact that on the date charged, Mr. Aloni's property was in an unsightly condition.
In arriving at his conclusion, Judge Kennedy observed that an objective test can be used to determine whether premises are unsightly within the meaning of s. 124. In his opinion, the objective test is what a reasonable person viewing the property would conclude, having regard for the nature of its use and occupancy and the standard of grooming that might reasonably be anticipated.
He found that Mr. Publicover was a member of the public when he viewed Mr. Aloni's property while using the private road. He also reasoned that one person can be "part of the public" and that premises need not be in a "public place" to be unsightly. Concluding that the Crown had proved its case and that the property was "unsightly to a part of the public", Judge Kennedy entered a conviction.
Mr. Aloni appealed his conviction to the Supreme Court. It was heard by Mr. Justice MacAdam. He dismissed the appeal.
Justice MacAdam agreed with Judge Kennedy's application of an objective test in deciding whether the premises were unsightly and also with the finding of the trial judge that they were. He concluded, as did Judge Kennedy, that "part of the public" as referred to in s. 124, includes one person, and that it does not matter whether the person is exercising a public or private right when using the shared private access road. Justice MacAdam found no ambiguity in the language or application of s. 124 as it related to the fact situation involving Mr. Aloni.
Mr. Aloni argued before Justice MacAdam that Judge Kennedy erred in determining the premises were unsightly. Justice MacAdam rejected the argument. It does not now appear to be in issue. Judge Kennedy made a finding of fact upon which there was evidence in support. He applied reasonable tests. His findings should not be disturbed.
Mr. Aloni contends Justice MacAdam erred in law in his interpretation of the word "public" and the phrase "part of the public". He asserts that "public" as a noun does not clearly refer to every person, that a person is not necessarily "part of the public", that whether a person is part of the public depends on whether the person is exercising a public or private right. In short he argues the language in s. 124 is ambiguous and because it is, his conviction should be quashed and an acquittal entered.
In support of his position, Mr. Aloni refers to the definition of "public" as found in Black's Law Dictionary, 6th ed. at p. 1227:
Public, n. The whole body politic, or the aggregate of the citizens of a state, nation, or municipality. The inhabitants of a state, county, or community. In one sense, everybody, and accordingly the body of the people at large; the community at large, without reference to the geographical limits of any corporation like a city, town, or county; the people. In another sense the word does not mean all the people, nor most of the people, nor very many of the people of a place, but so many of them as contradistinguishes them from a few. Accordingly, it has been defined or employed as meaning the inhabitants of a particular place; all the inhabitants of a particular place; the people of the neighbourhood. Also, a part of the inhabitants of a community. [Underlining by Mr. Aloni.]
Mr. Aloni says the word, as a noun, can have more than one meaning and is therefore ambiguous in the context of s. 124. He also refers to certain legislative enactments which contain a specific definition of the word "public".
For example, the revised Ordinances of the Northwest Territories, 1994, vol. II, in its securities legislation (s. 29(2)), provides that for the purposes of the Ordinance, the word "public" does not include four types of relationship and classification. So also the Registered Insurance Brokers Act, R.S.O., 1980, c. 444 defines, for the purposes of the Act, that "'public' means persons other than insurers, insurance brokers, insurance adjusters and insurance agents". The Credit Union Act of Saskatchewan when dealing with trust indentures defines "public" as including "members of a credit union". The list could go on.
The Legislature has not defined "public" in the Municipal Act as it relates to unsightly premises. Therefore, the word is to be given its ordinary, regular and normal meaning. As a noun, Black's ascribes a broad meaning to the word "public". Neither Judge Kennedy nor Justice MacAdam can be said to be wrong when they concluded that, barring restrictive language in s. 124, "public" must be deemed to mean everybody. The section has no geographical limitation such as applying only to the people of Blandford or the District of Chester: The breadth of its language makes it applicable to all Nova Scotians. "Public" is used as a noun and not as an adjective. The words ... to all or any part of the public ... permit application to many or few. Few may include one person. The reasonable interpretation is that which has been given in the two courts below; namely, everybody, and that includes Mr. Publicover.
Justice MacAdam put it this way:
... A part of the public is a member of the public. Part has the additional advantage of also including more than a single member. By doing so it does not, however, preclude its application to a single member. I agree with Judge Kennedy that "part" includes the smallest segment or section, and in this case, would include a single member of the public.
There is no ambiguity in the terminology used in the context of its application to a single individual coming within the phase "a part of the public".
With all due respect to the diligent research of Mr. Aloni, the nature of the ambiguities discussed in Rex v. Kerr, [1947] 1 WWR 814, and Rex v. Wicks, [1946] 2 All ER 529, do not exist here.
Mr. Aloni argues the decision of Justice MacAdam is flawed because Mr. Publicover was exercising a private right over the access road when he made his complaint. By exercising a private right arising from the shared access, Mr. Publicover, in the submission of Mr. Aloni, was not using the road or viewing the premises as a member of the public.
Mr. Aloni made a similar submission to the Supreme Court. Justice MacAdam responded by stating:
... The section, in question, only requires that the premises be unsightly to all or any part of the public. There is no requirement that the "part of the public" be exercising any type of right at the time, that is, that they be exercising a public as opposed to a private right, in viewing the "unsightly premises".
Section 124 does not appear to have anything to do with the rights or relationships of people who may be involved in a particular fact situation. To be a "victim" of the section, one need only be a member of the public. In that respect, Justice MacAdam did not err.
In support of his argument, Mr. Aloni places considerable stress on the decision of this Court in Beattie et al. v. Acadia University et al. (1976), 18 N.S.R. (2d) 466. That case involved some students at Acadia who were excluded from the University basketball team as a result of a quota system that applied to players from the United States. They alleged they were entitled to a declaration under the Human Rights Act (Nova Scotia) which provided:
3. Every individual and every class of individuals has the right
(a) to obtain admission to and enjoyment of accommodations, services and facilities customarily provided to members of the public;
In dismissing the application the court said that the applicants were seeking to enforce a student right and not a public right. It concluded that participation on the Acadia University basketball team was not a service or facility customarily provided to members of the public. The court did not say that the students were not members of the public. The court said the right the students sought to enforce was not one "customarily provided to members of the public". It was a right provided only to students.
Unlike the Acadia basketball team situation, there is no special relationship between Mr. Aloni and Mr. Publicover that would exclude him (Mr. Publicover) from being a "part of the public" solely because he has a legal right to use the shared access road with Mr. Aloni. For the purposes of s. 124, Mr. Publicover as a member of the public is a person the Legislature intended to protect from being exposed to unsightly premises. It is a legislative provision of general application to all members of the public, whether the "public" be one or many persons.
Mr. Aloni described the underlying fact situation as a problem between neighbours that should be resolved by the application of tort law "or some other law". He suggests that s. 124 can be used by a neighbour to achieve a result that bears no resemblance to the purpose of the section, such as a gain in value of real property.
Private remedies that may exist between neighbours are not affected by or subject to the application of s. 124. The Legislature has decided that it is in the public interest that no person shall permit his or her property to deteriorate in the manner described in s. 124(1) and thus cause it to become unsightly to all or any part of the public. The subject matter is entirely within the legislative competence of the House of Assembly. That circumstances may exist or develop between neighbours giving rise to the application of other forms of civil liability does not deter from the application and enforcement of s. 124.
Conclusion
Mr. Aloni comes to this Court to appeal the decision of Justice MacAdam, who affirmed the conviction entered by Judge Kennedy. He alleges both judges made errors in law. He has advanced several considered arguments, the principal one being that the language of s. 124(1) is so ambiguous and uncertain that it cannot be applied to these facts and his conviction resulting therefrom is unsafe.
I have concluded, for the reasons given, that no errors in law were made by either or both of Justice MacAdam and Associate Chief Judge Kennedy. Accordingly Mr. Aloni's appeal against conviction should be dismissed.
Clarke, C.J.N.S.
Concurred in:
Hart, J.A.
Chipman, J.A.