Title: Order LA02-01 - Planning Appeal - Barry Copeland v. City of Summerside (March 5/02)

Docket: LA01007
Order LA02-01

IN THE MATTER of an appeal by Barry Copeland against a decision by the City of Summerside, dated August 21, 2000.

BEFORE THE COMMISSION

on Tuesday, the 5th day of March, 2002.

Maurice Rodgerson, Vice-Chair
James Carragher, Commissioner
Norman Gallant, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant

Written submissions provided by Barry Copeland

2.    For the Respondent

Written submissions provided by David W. Hooley, Q.C.

Reasons for Order

1.  Introduction

[1] This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Planning Act) by Barry Copeland (the Appellant) against a decision of the City of Summerside (the Respondent) to adopt zoning bylaw amendment SS-15-A13, dated August 21, 2000.

[2] According to the Notice of Appeal (Exhibit A1) dated August 1, 2001 and other evidence before the Commission, the Appellant is appealing the decision of the Respondent to rezone a portion of property number 67959 from Low Density residential (R1) to proposed Institutional (I) under the City of Summerside Zoning Bylaw SS-15.

[3] Upon receipt of a copy of the Respondent's file, Commission staff identified a potential preliminary matter concerning the issue of jurisdiction and invited the parties to file written submissions. Submissions were received from the Appellant, dated September 17, 2001 (Exhibit A2), and from the Respondent dated October 1, 2001 (Exhibit R40).

[4] Following consideration of the submissions by the Commission, and after suitable scheduling for the parties, a pre-hearing conference was held on January 15, 2002 between the parties and Commission staff. The Commission determined that the issue of jurisdiction would be addressed by way of written submissions, and invited the parties to provide any further written submissions by February 15, 2002. The Appellant filed a second submission, dated February 3, 2002, and the Respondent filed a brief, dated February 14, 2002.

[5]  This decision relates to the preliminary issue of jurisdiction.

2. Discussion

Appellant

[6] The Appellant contends that the Commission has the jurisdiction to hear his appeal. The details of the Appellant's arguments are contained in his first submission, Exhibit A2. He presents a timeline and further information in his second submission, titled “Summary of Facts”, dated February 3, 2002. The following contains the essence of the Appellant's argument from the perspective of the issue of jurisdiction:

The Appellant was prepared to appeal the Respondent's decision made at its monthly council meeting on August 21, 2000. He was prepared to do so based on the belief that the approval process was “flawed and full of procedural errors leading to confusion as to exactly what had been approved.”

The Appellant's interpretation of the Respondent's decision was that the rezoning for the school had been approved, with the road leading to the school terminating as a driveway at the second parking lot. On August 22, 2000, he requested written clarification from the Respondent and advised them that he was considering filing an appeal with the Commission if they did not share his stated understanding of their decision. The Respondent replied by sending a copy of the minutes of the Respondent's August 21, 2000 meeting. Given that the minutes contained the Appellant's statement at the meeting of his understanding of what the Respondent had approved, and that the Respondent did not disagree with this statement, the Appellant believed that an appeal was unnecessary as he understood that the Respondent shared his interpretation of what had been approved. He then destroyed his draft appeal.

Almost a year later, the Appellant was informed by another resident that the actual construction taking place on property number 67959 was contrary to what the Appellant believed would happen as a result of the August 21, 2000 approval of the rezoning application.

On July 5, 2001 the Appellant wrote the Respondent requesting that the matter of the status of the road leading to the school be placed on its council agenda and that the public be given sufficient notice so that interested parties could attend. The only written response received by the Appellant was confirmation that his letter had been received. He was, however, unofficially informed that no action would be taken concerning his request.

The Appellant filed an appeal with the Commission on August 1, 2001.

The Appellant cites three legal issues for the Commission's consideration: natural justice, the duty of fairness and the “duty of administrative authority”. The Appellant states that there is a duty for an administrative authority to respond to correspondence from a citizen and to provide sufficient and timely information so that a potential appellant can make an informed decision concerning the exercise of a right to appeal within the time frame established by law.

[7] The Appellant requests that the Commission hear his appeal as the Respondent's approval process was “flawed, full of procedural errors and misrepresentations.”

Respondent

[8] The Respondent takes the position that the Commission does not have the jurisdiction to hear this appeal under subsection 28(1) of the Planning Act. The primary thrust of the Respondent's submission is as follows:

The Respondent undertook a planning decision against which the Appellant filed a Notice of Appeal on August 1, 2001. The Respondent's decision was dated August 21, 2000 or, in the alternative, September 18, 2000.

Through an apparent mutual misunderstanding, the Appellant was not aware, nor was specifically made aware, until July 4, 2001, that the Respondent had made its decision in the matter.

The Appellant filed his Notice of Appeal on August 1, 2001, more than ten months after the decision he is appealing was made, and more than 27 days after the date on which he states he had effective notice of the Respondent's decision.    As a result, the Appellant missed the limitation period fixed for filing a Notice of Appeal in this matter. He is either over ten months late, or on the most generous interpretation of the facts, over six days late. The Appellant has not shown any reason to look beyond the ten month delay in filing his appeal and he should not be allowed to do so.

Subsection 28(1) of the Planning Act is clear; there is no exception made on, or condition placed on, the temporal limitation of jurisdiction. Appeals must be filed within twenty-one days. The matter is beyond the temporal jurisdiction of the Commission as the Appellant simply has not filed his appeal within twenty-one days.

The Commission has no power to overrule the clear time limit imposed upon it by statute and accepted by it in a previous Order of the Commission. The Legislature, in bringing subsection 28(1) of the Planning Act into force, had a number of drafting options available which could have granted the Commission the authority to extend the twenty-one day time limit. However, no such provision was provided in the Planning Act. The power to extend the time for filing an appeal cannot be implied where it is deliberately excluded.

[9] The Respondent requests that the appeal be dismissed as it was brought after the time available under the Planning Act and the Commission lacks the jurisdiction to extend the time for filing an appeal under subsection 28(1) of the Planning Act.

3. Findings

[10] The Commission has carefully considered both the written documentation submitted to it, and the applicable law.

[11] As a tribunal, the Commission is a creature of statute with the powers and jurisdiction prescribed by statute. In this case, the Commission's powers are derived from the Planning Act and the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988, Cap. I-11 (the IRAC Act). However, the Commission is also subject to the relevant provisions of the Interpretation Act, R.S.P.E.I. 1988, Cap. I-8 (the Interpretation Act) and the fundamental principles of natural justice and fairness.

[12] The Commission's jurisdiction in appeals under the Planning Act is set out in subsection 28(1), which states:

28(1) Subject to subsections (2), (3) and (4), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act may, within twenty-one days of the decision appeal to the Commission. (emphasis added)

[13] The Commission notes the mandatory nature of section 9 of the Interpretation Act:

9. Every enactment shall be construed as being remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

[14] Paragraph 6(a) of the IRAC Act is helpful when considering the Commission's jurisdiction:

6. The Commission has

(a) all the jurisdiction and powers conferred or vested in it by this Act or any other enactment, and all other implied or incidental powers necessary to perform its functions; (emphasis added)

[15] The Commission agrees with the submission of the Respondent that it does not have the jurisdiction to extend the twenty-one day appeal period. The reasoning for this was considered in some detail in Order LA00-06 Chester Campbell v. Town of Stratford (Campbell v. Stratford). However, in Campbell v. Stratford, the Respondent made the Appellant fully aware of the decision it had made. The error consisted of incorrect information regarding the time period for filing a Notice of Appeal. While the Commission found that the Appellant in Campbell v. Stratford had been mislead by the Respondent, the Respondent had clearly informed the Appellant of the actual decision.

[16] A distinction may be drawn between extending the twenty-one day appeal period, for which the Commission has no jurisdiction, versus establishing when the said appeal period begins.

[17] In the present appeal, it is necessary to review the facts in order for the Commission to determine if there are circumstances which would affect the commencement of the twenty-one day appeal period.

[18] The Commission notes with interest that the Appellant alleges that the Respondent's approval process was “flawed, full of procedural errors and misrepresentations.” By contrast, the Respondent characterized the events subsequent to August 21, 2000 as “apparently a mutual misunderstanding.”

[19] Upon a review of the documentation on file, the Commission notes that the Respondent's mayor, at the August 21, 2000 monthly meeting of Council, had asked the public if they understood what was done following the approval of zoning amendment SS-15-A13. The Appellant stated his understanding at that meeting:

… it is clear that you approved to rezone for a school with the fact that the road is going to terminate as a driveway at the second parking lot.

[20] The minutes of that meeting (Exhibit R4) reveal that “someone responded by saying yes”.

[21] On August 22, 2000, the Appellant wrote the Respondent (Exhibit R25) setting out the Appellant's understanding of what took place on the previous evening, seeking clarification of what in fact had taken place, and requesting:

"I would appreciate it if you would confirm the above in writing prior to the end of the time limit for an appeal to IRAC so that the residents in this area can rest assured that the issue of an access road through the school is in deed a dead issue.”

[22] In an August 1, 2001 letter attached to his Notice of Appeal, the Appellant states in part:

The mayor forwarded a copy of my letter to all councilors, the CAO, and the Director of Technical Services. Not one of these individuals saw fit to dispute my statement and as a result the mayor responded by sending me a copy of the minutes of the council meeting. I took this to be the requested written confirmation and did not appeal the rezoning to IRAC.

[23] However, by the conclusion of the September 11, 2000 meeting of the Respondent's Technical Services Committee, as revealed by the minutes of that meeting (Exhibit R5), the Respondent seems to have clearly understood its position. The Respondent's Technical Services Committee put forward a motion, which was carried, that “The application for subdivision for the French School Board be approved and the street will be a public street.” This motion clearly enunciated the position that the roadway leading to the school parking lot would not be a driveway or a private road, as the Appellant had understood, but a public street.

[24] The Respondent was clearly aware that the Appellant had previously objected to the roadway being approved as a public street. The Respondent's Technical Services Committee was specifically made aware that the Appellant had interpreted the Respondent's August 21, 2000 decision differently. Yet apparently no effort was made, subsequent to this meeting, to notify the Appellant in order to clear up this “mutual misunderstanding”.

[25] On September 18, 2000, the Respondent's council approved a resolution (Exhibit R9) which characterized the roadway as a public street. Again, no effort was apparently made to inform the Appellant that the Respondent had cleared up the “mutual misunderstanding” and carried a resolution of council to this effect.

[26] On the basis of the forgoing and the totality of written evidence before the Commission, the Commission finds that the Respondent ultimately mislead the Appellant and left him entirely unaware of the Respondent's true decision that the roadway had been approved by Council as a public street. The Appellant relied, to his detriment, on his belief that the roadway to the school would be a private driveway, and did not appeal the Respondent's decision. The Appellant did not become aware of this fact until early July 2001. The Commission finds that a reasonable person, armed with the same information as that provided to the Appellant, would likely have shared his belief.

[27] The Respondent referred the Commission to the following cases which are reproduced in their entirety in the Respondent's brief and are cited as follows in the brief's index:

Bruce MacIsaac v. The City of Charlottetown, Order LA99-11, December 2, 1999.

Cooper v. Canada (Human Rights Commission) [1996] 3 S.C.R. 854.

The Attorney General of Canada (Applicant) v. Nancy Green and Canadian Human Rights Commission (Respondents) (Unreported Trial Division, Lemieux J. – Toronto, June 28, 1999; Ottawa, June 2, 2000, T-1529-98).

D.W.A. v. Appeals Board and MacDonald, 2001 PESCTD 43.

U.E.S., local 298 v. Bibeault [1988] 2 S.C.R. 1048.

Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1955] 1 S.C.R. 157.

[28] The case law noted above provides a helpful review of several basic principles of administrative law and statutory interpretation. However, the Commission finds that a more in-depth review of case law is necessary to provide guidance given the rather unique facts of the present appeal.

[29] In Pagee v. Manitoba (Director, Winnipeg Central), [2000] M.J. No. 180 (C.A.) Justice Philp dealt with the issue of a late appeal under the Employment and Income Assistance Act. The Notice of Appeal provision stated that a person may, within 15 days of receiving the notice, file a written notice of appeal with the board. He commented as follows:

The Act sets out a scheme whereby the recipient of income or other assistance can challenge in a timely and structured way the Director's decision or order discontinuing, reducing, or suspending his/her assistance. To conclude that the time requirement of s. 9(4) of the Act is not obligatory would, in effect, ignore the ordinary and grammatical sense of the words and leave the statutory scheme in disarray.

[30] Justice Philp also pointed out that in Vialoux v. Registered Psychiatric Nurses Association of Manitoba (1983), 23 Man.R. (2d) 310 the court determined that mandatory procedural provisions go to the jurisdiction of a tribunal, and the failure to follow such provisions will leave the tribunal without jurisdiction and render its decisions or order a nullity. He stated that, although that was the general principle, there were exceptions. The first of these exceptions is where there is the consent of the parties, but more importantly, the second exception arises where the parties are estopped from arguing lack of jurisdiction where they have agreed that a condition precedent to the tribunal's jurisdiction is present.

[31] In Molson Ontario Breweries v. Ontario (Minister of Finance), [1985] O.J. No. 295 (Ct. High Just.), the court was faced with the decision of whether or not to grant relief on behalf of Molson in relation to the late filing of a notice of appeal under the Retail Sales Act. After receiving a decision from the Assistant Deputy Minister Tax Revenue by mail which stated that Molson had ninety days to appeal the decision and could receive further information concerning the appeal process by either mailing or phoning the director, the company immediately decided to appeal. Cressman, a tax consultant and agent for Molson was not able to reach the official in charge of appeals until the day the appeal was due (unbeknownst to Cressman). He was told in this conversation that the time to appeal had expired two days previous. The official gave Cressman incorrect information. A solicitor and two senior officials at the Ministry became aware that the incorrect information had been given but did not notify Molson. Molson relied on this information and did not file their appeal, believing that it was too late to do so. The court concluded that if Molson had been given the correct information they would have filed an appeal and that the Ministry was aware that Molson would appeal the assessment. The court held that the Ministry conducted itself in such a way that it was estopped from asserting the ninety day limitation period.

[32] It is important to note that the Retail Sales Act considered in Molson contained a provision which provided that the time limit could be extended if an application for an extension was received before the ninety day appeal period expired. While the Planning Act does not contain a similar provision, the Manitoba Court of Appeal in Pagee made it clear that estoppel is available when no such provision exists.

[33] In Laurel Construction Ltd. v. St. John's (City), [1997] N.J. No. 270 (T.D.), the court discussed the issue of extending limitation periods after the City of St. John's allowed an intervener an extension to appeal their decision concerning Laurel's development proposal. Laurel then challenged the City's decision to extend the time period for filing an appeal. The first public notice of the City's approval of Laurel's development proposal occurred through the Development Permits List attached to an Agenda for a City Council meeting. The intervener argued that the limitation period should not begin to run until the general public could discover that the subdivision permit had been issued. The City sought direction from the court as to whether it had the authority to extend the time for filing appeals. Justice Barry held that a statutory authority could not waive a condition precedent to its jurisdiction but also stated that it would be absurd to interpret the regulation that set out the time limit as contemplating that the appeal period started to run before the general public became aware of the decision to be appealed. He stated that such an interpretation would, in effect, often eliminate any real opportunity for appeal and that the regulation must be read as requiring the appeal period to begin running from the day the public became aware of the decision appealed from.

[34] The Laurel Construction decision effectively interprets the date of a “decision” as being the date on which the public became aware of the decision. The Commission finds that the court's interpretation in Laurel Construction is very much in keeping with section 9 of the Interpretation Act. The decision in Laurel Construction also is in accord with common sense. If subsection 28(1) of the Planning Act is read literally and is held as being immutable, then a municipality (or the Minister) could always avoid an appeal by the simple expedient of not making the decision public for twenty-one days after making the decision. This would, of course, defy the intention of the Legislature, effectively eliminate the right of appeal and amount to a profound affront to justice in the Province. However, section 9 of the Interpretation Act ensures that the will of the Legislature would not be so corrupted.

[35] In addition, a careful review of the wording of subsection 28(1) of the Planning Act is revealing. The right to an appeal under the Planning Act was granted by the Legislature to “…any person who is dissatisfied by a decision of a council…” In order for a person to be dissatisfied with a decision, common sense dictates that they first must be aware, or have had a reasonable opportunity to be aware, of the decision.

[36] In Campbell v. Stratford, the Commission placed considerable emphasis on the fact that the decision under appeal was made at a public meeting. While the notice necessary to reasonably advise the public may vary considerably, under ordinary circumstances the making of a decision by a municipality at a public meeting would likely be sufficient.

[37] However, in the present appeal, the facts and circumstances are extraordinary. A state of confusion existed about the meaning of the Respondent's August 21, 2000 decision. The Appellant wrote the Respondent requesting that written clarification be provided to him prior to the expiry of the time limit for an appeal. The response he received was a copy of the minutes, which included his restatement of what had happened. The minutes reflect that someone agreed with his restatement. More importantly, no one disagreed with his restatement. He therefore concluded that the Respondent agreed with his understanding as to what took place, and decided not to appeal the Respondent's decision.

[38] However, unknown to the Appellant, the Respondent moved to clarify their decision, ultimately leading to a resolution at the September 18, 2000 monthly council meeting. The minutes of the Respondent's Technical Services Committee meeting of September 11, 2000 clearly reflect the fact that the Respondent was aware of the Appellant's understanding of their decision:

Stewart said one of the residents sent a letter wanting to clarify exactly the resolution council passed. He said before he responded to the letter he listened to the minutes of the tape. Stewart said he thinks he was advised at the meeting it would be a private driveway and we are saying differently here now.

Yet at no time did the Respondent make the Appellant aware that the matter had been clarified, and that the Appellant's interpretation was incorrect.

[39] The Commission finds that the Respondent had full knowledge, through written correspondence and verbal statements, of the Appellant's understanding of what had been decided at the August 21, 2000 meeting. The Respondent was also aware that the Appellant had expressed an intention to appeal the decision if the Respondent did not share his understanding.

[40] The Commission, noting the particular events in this matter, finds that the Respondent did not properly ensure that the Appellant was reasonably informed of the Respondent's ultimate understanding of the decision made at the August 21, 2000 meeting. The Appellant did not, therefore, become aware of the substance of the true decision until much later, either July 4, 2001, as noted in the letter attached to his Notice of Appeal, or July 3, 2001 as stated in his February 3, 2002 submission. The Commission finds that, had the Appellant been aware that the Respondent was considering the roadway to the school as a public street, the Appellant would have, in all probability, appealed either the August 21, 2000 rezoning decision (which appeal period expired on September 11, 2000) or the Respondent's subdivision decision of September 18, 2000 which contained, as part of the resolution, a provision clearly identifying the roadway as a public street.

[41] The Commission, mindful of the wording of subsection 28(1) of the Planning Act, section 9 of the Interpretation Act, the case law presented to and noted by the Commission, as well as the principles of natural justice and fairness, finds that the true date of the Respondent's decision was the date of which the Appellant became aware of the substance of the decision.

[42] Accordingly, the Commission finds that the twenty-one day appeal period under subsection 28(1) of the Planning Act commenced on either July 3, 2001 or July 4, 2001. The deadline for the Appellant to file his appeal thus was either July 24, 2001 or July 25, 2001. Had the Appellant filed his appeal within this time period, the Commission would have jurisdiction to hear this appeal. However, he did not file his appeal until August 1, 2001. The Commission, as explained earlier in these reasons, has no jurisdiction to extend the twenty-one day appeal period set out under subsection 28(1) of the Planning Act.

[43] As a result, the Commission finds that it is without jurisdiction to hear this appeal.

[44] CARRAGHER, COMMISSIONER (Dissenting): I dissent from the findings of the majority's Decision and Order for reasons which follow:

[45] I concur with the reasoning of my colleagues up to and including paragraph (39) of the above reasons. However, I do not agree that the twenty-one day appeal period commences in early July 2001.

[46] In my view, because of the cloud of confusion created by the Respondent which seriously mislead the Appellant, the twenty-one day appeal period did not commence until the Appellant became specifically aware of the Respondent's September 18, 2000 resolution which clearly identified the roadway as a public street. The Appellant only became specifically aware of this resolution following the receipt of disclosure of the Respondent's documents, facilitated through the Commission's staff. This occurred some time after the Appellant filed his appeal. It was only upon reading this disclosure that this cloud of confusion had been cleared for the Appellant. Accordingly, I would find that the Appellant had filed his appeal prior to the expiry of the twenty-one day appeal period.

[47] I would therefore find that the Commission does have the jurisdiction to hear this appeal, and in my view, this matter should proceed to a full public hearing on the merits of this appeal.

4. Disposition

[48] On the findings of the majority of the panel, an Order finding that the Commission is without jurisdiction to hear this appeal will be issued.

Order

WHEREAS Barry Copeland has appealed a decision by the City of Summerside dated August 21, 2000 to adopt zoning bylaw amendment SS-15-A13, a bylaw to amend the City of Summerside Zoning Bylaw, affecting a portion of property number 67959;

AND WHEREAS the Commission has received and considered written submissions from both parties on a preliminary matter;

AND WHEREAS the Commission has issued its findings in this matter in accordance with the Reasons for Order issued with this Order;

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act

IT IS ORDERED THAT

1. The Commission does not have the jurisdiction to hear this appeal.

DATED at Charlottetown, Prince Edward Island, this 5th day of March, 2002.

BY THE COMMISSION:

Maurice Rodgerson, Vice-Chair

Norman Gallant, Commissioner

James Carragher, Commissioner (Dissenting)

NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13.(1) and 13(2) of the Act provide as follows:
13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.