Contents

Appearances & Witnesses

Reasons for Order

Overview

Decision

Bacground

Discussion

Conclusion 

Order

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Appearances & Witnesses

1.  For the Appellant, Andrea Battison

Witnesses:
Douglas Mills
Joan Cumming

2.  For the Respondent, City of Charlottetown

Counsel:
David W. Hooley, Q.C.
Melanie McKenna

Witnesses:
Greg Morrison
Alex Forbes

3. For the Developer, University of Prince Edward Island

Counsel:
Jonathan Coady, Q.C.
Will Cann

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Reasons for Order

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Overview

1.  The Appellant, Andrea Battison ("Battison"), appeals a May 13, 2020 decision of the City of Charlottetown (the "City") to adopt Bylaw PH-ZD.2-027, a Bylaw for a site specific exemption in the Institutional (I) Zone of the Zoning & Development Bylaw (the "Bylaw") for 550 University Avenue (PID #373126) (the "Property") in order to allow the proposed nine storey (35.4m) dormitory/residence to be constructed on the Property (the "Development"). This decision permits construction of a building on the Property by the developer, the University of Prince Edward Island (the "University"), which otherwise exceeds the maximum building height permitted in the City's Institutional (I) Zone.

2.  Battison's primary argument on appeal is that the public meeting procedure, adopted by the City in response to the global COVID-19 pandemic and utilized for a public meeting regarding the Development, does not meet the requirements of the City's Bylaw or the Municipal Government Act (the "MGA").¹  She further argues that a typographical error in the second of two newspaper notices of the public meeting invalidates the meeting and, therefore, the City's decision.

3.  Battison also made submissions which the Commission understood to suggest that she believes the City's decision was inconsistent with sound planning principles.

Decision

4.  The Commission denies the appeal and confirms the City's decision.

5.  The Commission finds that the public meeting procedure adopted by the City in response to the onset of the COVID-19 pandemic, including the notice requirements for the public meeting held with respect to the Development, met the requirements of the City's Bylaw, as well as all other statutory requirements. 

6.  As will be discussed, Battison identified a single error with a registration date contained in the second of two newspaper notices regarding the public meeting. In this instance, a mere technical error, which did not strike at the heart of the public notice and which could easily have been clarified by contacting the City, is insufficient to invalidate what was otherwise proper notice.² 

7.  With respect to sound planning principles, Ms. Battison did not provide any objective evidence to establish that the City failed to adhere to sound planning principles. 

Background

8.  On February 14, 2020 the University applied for a bylaw exemption for the "Southwest corner of UPEI property, 550 University Avenue". The application stated:

Construction of a new residence building that will provide housing for the athletes for the 2023 Canada Games. It will also provide much needed housing for University students.

Efforts to Schedule Public Meeting

9.  The application was reviewed by the City's planning staff, the City's Planning Board and the City's Council. On March 9, 2020, Council approved that the request proceed to a public meeting.³ 

10.  A public meeting was initially scheduled for March 24, 2020. Public notice was issued in accordance with the Bylaw.⁴  

11.  Due to the onset of the COVID-19 pandemic in mid-March, 2020, the public meeting was rescheduled to March 30, 2020. Public notice was also issued for this meeting.  As a result of the directions of the Chief Public Health Officer for PEI that meeting was cancelled.⁵ 

12.  The City then set a new public meeting date for April 28, 2020.⁶

Notice of the April 28, 2020 Public Meeting

13.  On April 18, 2020 and April 25, 2020, the City published identical notices of the public meeting in the Guardian newspaper.⁷  the public notice specified that the City would be using a modified public meeting procedure, set out options for public participation, and encouraged City residents to contact City staff for further information.

14.  With respect to the available methods of participation, the notices stated:

Residents wishing to participate may use any of these methods

• Webex; or

• Connect by phone and/or watch the live stream at wwww.charlottetown.ca/video; or

• Attend in person (social distancing policies will apply)

Residents who just wish to watch or listen without participation may do so by watching the live stream at www.charlottetown.ca/video.

15.  For those wishing to participate, the notices encouraged residents to contact the City Planning Department on or before April 23, 2020 to provide their contact information. City staff would then contact the interested parties no later than noon on April 27, 2020 with participation details:

Residents who are interested to participate in the public meeting are encouraged to contact the Planning & Heritage Department by email at planning@charlottetown.ca or call 902-629-4158 on or before 4:30 p.m. on Thursday, April 23, 2020 to provide their contact details (Name, phone number and/or email address). Business hours are between 8:00 AM - 4:30 PM, Monday - Friday. Staff will contact interested participants no later than 12:00 p.m. on Monday, April 27, 2020 with the details on how to participate in the meeting. [emphasis added]

16.  The notices also invited written submissions, with a deadline of April 30, 2020 at 12:00 p.m.

Public Meeting Procedure

17. The modified public meeting procedure provided four opportunities to participate in and/or observe the public meeting. Individuals could participate via WebEx video conference, by telephone (with or without watching a livestream), attend in person and participate using a computer on-site, or view a livestream audio and video feed.

18.  The modified public meeting was held on April 28, 2020 at 6:00 p.m.

19.  University staff and a consultant presented at the public meeting. The public was invited to submit questions and/or comments; however, none were submitted during the meeting. Councillors asked a number of questions regarding the Development.⁸  The public presentation and question and answer component of the meeting lasted approximately 35 minutes.⁹

20.  Participants were also advised at the public meeting that written submissions could be emailed to City staff before noon on April 30, 2020.¹⁰ 

Planning Board Recommendation and Council Approval

21.  City planning department staff recommended approval of the site-specific exemption.¹¹

22.  Planning Board considered the application on May 4, 2020, agreed with the planning staff recommendation, and recommended approval to Council.¹²

23.  Council agreed with Planning Board's recommendation. The application went before Council for first reading on May 11, 2020. Second reading (and thus approval) of the Bylaw exemption occurred on May 13, 2020.¹³  

Appeal Procedural History

24.  Battison filed a Notice of Appeal with the Commission on June 2, 2020, within the statutory appeal deadline as set out in the Planning Act.¹⁴  

25.  A telephone pre-hearing conference was held with Commission staff and the parties on June 16, 2020.

26.  The Record was received on June 22, 2020.¹⁵  

27.  Mediation was held July 13, 2020 but was unsuccessful.

28.  The appeal was heard on July 30, 2020, subject to the Commission's COVID-19 in-person hearing directives.¹⁶

Discussion

29.  Battison argues that public engagement in the municipal decision-making process is an essential requirement of the MGA, that the second public notice of the April 28, 2020 public meeting did not meet they Bylaw notice requirements, and that the public meeting was not acceptable as it did not meet the standards of a 'traditional' (i.e. in-person) public meeting.

30.  Battison did not give oral testimony at the Commission hearing. Rather, she called two witnesses: her spouse, Douglas Mills ("Mills"), and her friend, Joan Cumming ("Cumming").

Alleged Public Notice Deficiency

31.  Battison's argument with respect to public notice is extremely narrow. In her view, the typographical error in the second newspaper notice published April 25, 2018, which encourages residents to contact the City on or before April 23, 2020,¹⁷  to register for the public meeting, invalidates the notice and thus the public meeting and City decision.  This argument is not persuasive.

32.  The City, for its part, concedes its error, but states that no resident was turned away from the meeting. The University argues that the error was technical, not material, and did not affect the outcome of the process. 

33.  With respect to the public notice, the Commission heard not from Battison, but rather Mills and Cumming with respect to what impact, if any, the typographical error had on their attendance at the public meeting.

34.  Mills testified that he did not see the Guardian notice on April 18, 2020, but he did read the Guardian notice on April 25, 2020. He testified that by then it was too late to contact the City as, in his mind, the notice gave a deadline of April 23, 2020. He did not attempt to contact City staff. He also speculated that the meeting would be cancelled as people were expected to stay indoors and not allowed to go to functions due to the COVID-19 public health emergency.

35.  Cumming testified that she has electronic access to the Guardian newspaper but does not get a printed copy. She stated that her internet was slow due to increased web traffic due to COVID-19, and depended on CBC Compass for the news. She would receive notice of public meetings from discussions with Battison, a long-time friend. She did not participate in the public meeting as she was busy operating her student/tourism rental business.

36.  Greg Morrison ("Morrison") is a planner in the City's planning department. He was responsible for processing the University's application. Morrison testified that the purpose of the April 23, 2020 date in the public notice was to have members of the public contact the City so it could provide individuals with training to use Webex and become accustomed to the modified meeting process. The City continued to operate during the COVID-19 pandemic, and individuals could have called the City for further information regarding the public meeting, even after April 23, 2020. Alex Forbes ("Forbes") is the Manager of Planning for the City. He testified that the registration component of the public notice was to permit the City to prepare for the public meeting and comply with social distancing requirements. 

37.  Section 3.10.4 of the Bylaw sets out the notification requirements that the City must follow for a public meeting. The Record and testimony before the Commission establishes that the City met those requirements. Notice was published twice in a local newspaper. It contained all of the content prescribed by the Bylaw. For instance, the notice identified the subject lot, described the application, and provided a deadline for written comments.¹⁸ 

38.  There is no evidence before the Commission that anyone was denied the opportunity to participate in the public meeting as a result of the erroneous registration date in the second newspaper notice. The newspaper notice encouraged, but did not mandate, registration. Neither of the witnesses called by Battison made any efforts to contact the City. The registration procedure was not a statutory requirement. The notice complied with all the procedural obligations of the Planning Act, MGA, and City bylaws.

39.  The Commission is satisfied that the registration date error in the April 25, 2020 newspaper notice was a technical defect. This has been conceded by the City. However, the error was not material. Morrison testified that no one was turned away from the public meeting. There is no evidence to suggest otherwise. The error was immaterial and does not invalidate the public meeting notice or process.

Public Meeting Process

40.  Battison made further arguments taking issue with the form of meeting undertaken by the City. She argued that the public meeting was limited only to those with "technical resources" and that there needs to be a public meeting where all interested public can attend. In support of her argument, Battison again relied on the testimony of Mills and Cumming.

41.  Mills testified that the 'traditional' in-person meeting is the only form of meeting he is familiar with, he does not use email, uses a "flip-phone", and finds technology difficult. He also testified that he did not want to use the telephone, did not want to be put on hold, and he preferred an in-person meeting. Mills did not participate in the public meeting.

42.  For her part, Cumming testified that she has attended many public meetings in the past, but was not as active in her attendance as she used to be. She testified that she has problems using technology.  She was suspicious of "apps", concerned for computer security and thus would not download "apps" such as Webex.  She testified that she did not want to leave her home during this time and only went outside if it were "life and death". Cumming did not participate in the public meeting.

43.  The Commission cannot accept Battison's argument with respect to the public meeting process developed and executed by the City. The testimony of Mills and Cumming was unhelpful and did not assist Battison in this regard. The Commission is satisfied that the City met its Bylaw obligations,¹⁹  as well as the electronic meeting requirements of the MGA²⁰  and the City's procedural bylaw regarding electronic meetings.

44.  Counsel for the University accurately summarized the relationship between the Planning Act, the MGA, and the relevant city Bylaws, being the Bylaw and its procedural bylaw. Section 122 of the MGA addresses electronic meetings of council. In effect, it requires councillors to speak and hear. It requires members of the public to see and hear. The City's procedural bylaw mimics these requirements.²¹  The Record is clear that the requirements for the City to conduct the public meeting electronically were met.²²

45.  The Record and testimony of City staff makes this abundantly clear. The public meeting had an in-person component.²³  The City's Parkdale room was equipped with large television screens for individuals to view while maintaining social distancing. In addition, areas on the first floor and foyer were prepared to accommodate in-person attendance if required.  A computer was set up for in-person participation. Individuals could also participate using the Webex platform or by telephone. They could also watch the City's live stream, and send in written comments after the meeting.²⁴  Not only could individuals "see and hear", they could actively participate. Questions were permitted and could be asked in not less than three ways: via Webex, telephone, or a physical computer at the meeting location.²⁵ 

46.  The Commission finds the City's modified public meeting process met, and exceeded, the relevant statutory obligations. In fact, the various forms of participation offered by the City went above and beyond the minimum requirements of the MGA and applicable bylaws.²⁶  It also complied with the existing Public Health Order in effect at the time, which limited - but permitted - public gatherings of up to five people.

47.  The COVID-19 pandemic has upended life for all Islanders. What was business-as-usual before is no longer. Yesterday's public meeting is not today's, or tomorrow's. What remains constant is the need for public bodies, such as the City, to provide services to its residents. In this instance, the Commission is satisfied that the City not only met its statutory obligations in hosting the April 28, 2020 public meeting, but did so commendably.

48.  The Commission recognizes that Battison may not feel that the requirements of the MGA or the City's Bylaws are sufficient to address her concerns. However the appropriate forum for Battison to raise these concerns is not the Commission. Rather, the appropriate remedy is for Battison to lobby for changes to the MGA or the City's bylaws. Policy submissions belong not in the Commission hearing room, but rather on the floor of the legislature or the City Council Chamber.²⁷

Sound Planning Principles

49.  Although not specifically referenced in her grounds of appeal,²⁸  A number of comments by Battison and contained within the Record suggest to the Commission that she believes that the City's decision is inconsistent with sound planning principles. For instance, Battison questioned why the Development was not subjected to design review.  The Development is not a property that is subject to the design review process under the Bylaw.²⁹  She also raised concerns about the height of the Development, and that it may create a precedent for other buildings in the immediate area.³⁰

50.  The Commission has repeatedly emphasized the need for appellants, seeking to have the Commission overturn a well-reasoned municipal decision on the basis of sound planning principles, to bring forward objective and reliable evidence to support their position:  

The Commission is generally reluctant to interfere with a decision of a municipality on the basis that it is not consistent with sound planning principles, where that decision is supported by objective and reliable evidence from planning professionals confirming that the decision is based on the Planning Act, the applicable official plan and bylaw, and sound planning principles. It is incumbent upon an appellant to bring forward objective and reliable evidence to the contrary. In other words, where sound planning principles are at issue, it is prudent to call evidence from a planning professional or a person with experience in making planning-related decisions. More than the subjective concerns expressed by neighbouring property owners is required.³¹  [emphasis added]

51.  Appellants cannot expect that they will be successful in challenging decisions of municipal or provincial planning authorities, where the decision-maker has availed itself of planning expertise and provided sound reasons for its decision, absent evidence to the contrary. Subjective complaints, without more, are insufficient to overturn proper, reasoned municipal planning decisions. 

52. The Commission finds that there is adequate support in the Record for the Development. Planning Board accepted City planning staff's recommendation to approve the University's application. Council accepted Planning Board's recommendation to do the same.³² There is no expert evidence before the Commission to challenge Morrison's evidence. The Commission is satisfied that the City's decision is consistent with sound planning principles.

Conclusion

53.  The appeal is denied. The City's decision of May 13, 2020 is confirmed.

Footnotes:

1 Municipal Government Act R.S.P.E.I. 1988, Cap. M-12.1 . See in particular Part 5, Division 1.
2 For further discussion of technical deficiencies being insufficient to invalidate otherwise sound municipal decisions, see decision of the Commission in Queens County Condominium Corporation No. 40 (Order LA18-02).
3 Record, Vol. 1, Tab 6.
4 Record, Vol. 1, Tab 8.
5 Ibid.
6 Ibid.
7 The City also issued notification letters to property owners located within 100 metres of the Property and posted an announcement on the City's website. See Record, Vol.1, Tab 8.
8 Record, Tab 11.
9 Ibid.
10 Verbatim Minutes of Public Meeting. Record, Tab 11.
11 Record, Tab 12.
12 Record, Tab 13.
13 Record, Tabs 14, 15, and 17.
14 RSPEI 1988, c P-8, s.28(1.3).
15 Via email. paper copies provided to the Commission on June 24, 2020.
16 Available on the Commission website at www.irac.pe.ca. The hearing was broadcast publicly on the Commission's website.
17 i.e. two days prior to the notice's publication date.
18 This notice also met the requirements of subsection 18(10) of the Planning Act, RSPEI 1988, c P-8, which required that the notice be published in a local newspaper at least seven clear days in advance of the meeting and indicate "n general terms the nature of the proposed bylaw and the date, time and place of the council meeting".
19 Bylaw, s.3.10.4.
20 MGA, s.122.
21 Procedural Bylaw, s.13.3.
22 University Written Submission, July 7, 2020.
23The in-person component was also clearly set out as being available in the public notice.
24Testimony of A. Forbes. See also Record at Tab 12. Four letters of opposition and four letters of support were submitted, including correspondence from Battison.
25 Record, Tab 11. That no questions were asked by the public does not take away from the fact that the opportunity was provided.
26 And satisfied the City's Planning Act obligations to give residents and other interested persons the opportunity to make representations. See Planning Act, s.18(10)(a).
27 Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 (CanLII) at para.11.
28As set out in the Notice of Appeal.
29 Bylaw, s.3.14.
30 Record, Vol.III, Tab 121.
31 Queens County Condominium Corporation No. 40 v. City of Charlottetown (Order LA18-02) at para.41.
32 Record, Vol.1, Tabs 3, 12 & 13.

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Order

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WHEREAS the Appellant Andrea Battison appealed a decision of the City of Charlottetown, granting a site specific exemption in the Institutional (I) Zone of the Zoning & Development Bylaw pertaining to 550 University Avenue (PID #373126) (the "Property"), dated May 13, 2020;

AND WHEREAS the Commission heard the appeal on July 30, 2020;

IT IS ORDERED THAT

1. The appeal is denied.

2. The City's May 13, 2020 decision pertaining to the Property is confirmed.

DATED at Charlottetown, Prince Edward Island, this 22nd day of September, 2020.

BY THE COMMISSION:

J. Scott MacKenzie, Q.C., Chair
M. Douglas Clow, Vice-Chair
Erin T. Mitchell, Commissioner

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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 Court of Appeal upon a question of law or jurisdiction.

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