Title: Order LU12-01 - Unsightly Property Appeal - Docket LU10001 - Heidi Frankfurt and Justin Batten v. Minister of Environment, Energy and Forestry

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Docket LU10001
Order LU12-01

IN THE MATTER of an appeal by Heidi Frankfurt and Justin Batten of a purported order of the then Minister of Environment, Energy and Forestry.

BEFORE THE COMMISSION

on Friday, the 20th day of April, 2012.

Maurice Rodgerson, Chair
Allan Rankin, Vice-Chair

Order

Background

On August 18, 2010 Heidi Frankfurt and Justin Batten (the Appellants) filed a Notice of Appeal form with attached letter appealing an August 10, 2010 letter written by George Gaudet, Environment Officer (the Officer), on behalf of the Minister of Environment, Energy and Forestry [now the Minister of Environment, Labour and Justice] (the Minister). The Appellants filed their appeal pursuant to sections 8 and 9 of the Unsightly Property Act, R.S.P.E.I. 1988, Cap. P-8, (the Act). A copy of the Officer's letter was not attached to the Appellant's appeal.

On August 18, 2010 Commission staff wrote Jim Young, Director of Environment (the Director), enclosed a copy of the Notice of Appeal and requested a copy of the Minister's file on or before September 20, 2010. The Commission did not receive a copy of the file.

On February 3, 2012 Commission staff wrote the Appellants and the Director requesting an update on the matter. On February 14, 2012, the Director wrote to Commission staff advising that it was the position of the Minister that the Notice of Appeal was premature and that the appeal should be withdrawn, stating reasons for this position.

On February 15, 2012 Commission staff wrote the Director and the Appellants, considering the Director's letter to be a submission on an important preliminary matter and inviting a submission from the Appellants. On February 24, 2012 the Appellants wrote Commission staff setting out their position in the matter. The Appellants enclosed a copy of the Officer's August 10, 2012 letter as part of their submission package.

Position of the Minister

The Director contends, on behalf of the Minister, that the Notice of Appeal is premature and should be withdrawn for the following reasons:

The appeal filed by the Appellants indicates that it is an appeal of an order issued under subsection 2(2) of the Act. However, the Officer's August 10, 2012 letter is not an order under the Act.

The Officer's August 10, 2012 letter is standard procedure for the Minister in working with property owners to achieve compliance with the Act prior to moving to formal procedures.

Should the matter proceed in the future to a point where an order is issued under the Act, the Appellants may file a Notice of Appeal at that time.

The Minister takes the position that the Officer's August 10, 2010 letter is not an order and thus is not appealable under the Act.

Position of the Appellants

The Appellants contend that the Officer's August 10, 2010 letter appeared to be an Order for the following reasons:

Upon receiving the Officer's letter, the Appellants took action by responding with their August 18, 2010 letter. Whether the Officer's letter was to be technically labeled a "letter" or an "order" by the Minister; the Appellants understood that letter to be official and they thus followed the appeal procedures which were enclosed along with the Officer's letter. The Officer's letter and documents enclosed with that letter contained deadlines, consequences, photos of the property and a copy of the Act.

When the Appellants received no response to their appeal, they considered that the matter had been concluded.

The Appellants reserve the right to appeal any order which might be issued in the future concerning their property.

The Commission's Decision

The following provisions of the Act are germane to this matter:

2(2) Where an inspector believes, on reasonable and probable grounds, that any real property is unsightly property, the inspector may issue a clean-up order. 1975,c.32,s.2, 1994,c.64,s.1; 2006,c.16,s.63.

...

7. The person to whom the order is issued may appeal within ten days of the date of service to the Commission from the order of the inspector or from any part thereof. 1975,c.32,s.6.

Upon a review of the Officer's August 10, 2010 letter, first available to the Commission on February 24, 2012, it is the decision of the Commission that the Officer's letter was a letter seeking a resolution of the Minister's concerns, not an order. Accordingly, the Commission finds that as there was never an order to appeal in the first place, there is no present right of appeal.

The Commission wishes, however, to point out the importance of the parties disclosing documents in their possession. Had the Commission received the Officer's letter in the initial weeks following the filing of the appeal, this matter could have been resolved before the end of 2010.

The Commission notes that the Minister acknowledges that the Appellants have the right to appeal any future order served upon them which has been made pursuant to subsection 2(2) of the Act.

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Unsightly Property Act;

IT IS ORDERED THAT

1. The purported appeal filed by the Appellants on August 18, 2010 is hereby dismissed without prejudice to any future right to appeal.

DATED at Charlottetown, Prince Edward Island, the 20th day of April, 2012.

BY THE COMMISSION:

Maurice Rodgerson, Chair

Allan Rankin, Vice-Chair

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.

NOTE: In accordance with IRAC's Records Retention and Disposition Schedule, the material contained in the official file regarding this matter will be retained by the Commission for a period of 2 years.