[1]  This is a consolidation of two appeals filed by Mark Brown 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). The appeals are against two resolutions of the City of Charlottetown (the Respondent) on February 9, 2004.  Appeal docket LA04005 concerns the Respondent's decision to amend the future land use map of the Official Plan from Medium Density Residential and Commercial to Institutional, and also to rezone the properties at 331 Grafton Street (PID numbers 343764, 343780, 343798 and 343806) from Mixed Use Corridor (MUC) and Medium Density Residential (R-3) to Institutional (I).  Appeal docket LA04006 concerns the Respondent's decision to amend Appendix "G" of the Zoning and Development Bylaw - Permitted Uses in the CDA Zone - for the application by Holland College to construct a parking lot at 344 Grafton Street (PID number 679381).   

[2]  On February 27, 2004, the Appellant filed with the Commission a Notice of Appeal for each appeal.

[3]  After due public notice and suitable scheduling for the parties, the Commission proceeded to hear the consolidated appeals on April 30, 2004.

[4]  At the commencement of the hearing, legal counsel for Holland College (the Developer) raised a preliminary matter concerning the Commission's jurisdiction to hear both appeals.  In brief, the Developer's position was that the Appellant filed both appeals before the Respondent had made a final decision and thus the appeals were premature.  As this preliminary matter had not been raised by the Developer prior to the hearing, the Commission provided all parties an opportunity to file written submissions and written rebuttal submissions.

[5]   This Order deals with the preliminary matter only.

2.    Discussion

[6]  The Commission has carefully reviewed the written submissions filed by the parties.  The positions that follow represent a brief summary of each position.

The Appellant's Position

[7]  The Appellant submits that the word "decision" contained in subsection 28(1) of the Planning Act should be given a fair, broad and liberal interpretation and not a narrow, conservative interpretation.  It is submitted that both the February 9, 2004 and March 8, 2004 resolutions of the Respondent represent decisions that can be appealed.  In this matter, the Appellant appealed the Respondent's February 9, 2004 decision.

[8]  The Appellant further submits that the Developer has focused on the wrong process, that being the bylaw process.  Because the zoning amendments sought by the Developer also involve an amendment to the Official Plan, a bylaw is required.  The Appellant submits that the bylaw process is a process parallel to the process where the re-zoning itself is considered.  That does not mean, however, that the consideration and resolution on the application is not a decision.  The bylaw amendment process and the official plan amendment process are two separate processes which may, or may not, be heard concurrently.  Either process results in a determination which would constitute a decision that may be appealed under section 28 of the Planning Act.

[9]  For all the reasons contained in the Appellant's written submissions, it is requested that the preliminary objection raised by the Developer be rejected, and the Commission hear the appeals on their merits.

The Respondent's Position

[10]   The Respondent submits that the supervisory function of the Commission under section 28 of the Planning Act is in relation to bylaws already in place.  According to legislation in this Province, the passing of a bylaw signifies the decision to rezone an area within the City of Charlottetown.  In order for a bylaw to be passed, the preconditions set out in both the Charlottetown Area Municipalities Act R.S.P.E.I. 1988, Cap. C-4.1 (the CAMA Act) and the Planning Act must be met.  As noted in Sobeys Inc. v. Charlottetown (City), [1996] P.E.I.J. No.  11 (T.D.), these requirements are substantive, not just procedural in nature. 

[11]   In the present appeal, the Notice of Appeal was submitted following the precondition requiring a resolution of the Respondent's council, but before there was third reading, and before a by-law was passed representing the Respondent's decision.  No duty, obligation, benefit, or penalty was imposed on anyone as a result of the second reading of Council.  Accordingly, at the time the Notice of Appeal was filed there was no "decision" made on which the Appellant could appeal and no decision of Council that could be relied upon as giving any zoning rights or entitlements pursuant to the bylaw.  The Respondent's determination with the February 9, 2004 resolution was a communication required under the procedural requirements, but was not a decision upon which an appeal could be based within the meaning of the Planning Act.  A resolution of Council in this case cannot be considered the equivalent of a ‘final decision', but only an ‘interim decision', subject to change until passed through bylaw according to the process set out under the CAMA Act and the Planning Act.

[12]   As a result, the Appellant's Notice of Appeal was premature as there was no decision, at that time, of the Respondent in respect of a bylaw that could be the subject of an appeal within the meaning of section 28 of the Planning Act. Given that more than twenty-one days have passed since the third reading and Ministerial approval of the proposed rezoning; the limitation period for appeal set forth under subsection 28(1) of the Planning Act has expired, the Appellant cannot appeal and the Commission has no jurisdiction to hear an appeal in respect of the proposed rezoning. 

[13]   For all the reasons contained in the Respondent's written submissions, the Respondent seeks an Order from the Commission finding that it does not have the jurisdiction to hear the appeals filed by the Appellant in this matter.

The Developer's Position

[14]   The Developer submits that the final act in enacting the Zoning and Development Bylaws in this case was the Respondent council's third reading, which took place on March 8, 2004.  Until that time, no "decision" had been made by council and the bylaws had not been passed.  At any time prior to that date, the bylaws could have been defeated.  The Appellant's appeals in this matter, dated and filed on February 27, 2004, were filed prior to March 8, 2004, the earliest date upon which it can be said Council made a "decision".  The appeals are premature.

[15]   The Appellant has also purported to appeal the Respondent council's "decision to amend the Future Land Use Map of the Official Plan".  An amendment to the Official Plan by resolution, however, is not a decision "in respect of the administration of regulations or bylaws".  The Commission does not have jurisdiction to consider the implications for the Official Plan nor hear an appeal in respect of an amendment to the Official Plan in the absence of a valid appeal brought pursuant to section 28 of the Planning Act.  Given that the Commission does not have the jurisdiction to hear the appeals in respect of the amendments to the bylaws in this case, it follows that the Commission does not have jurisdiction over the Appellant's appeal in respect of the amendment to the Official Plan.

[16]   Since the earliest date upon which the Appellant could have appealed Council's decision to approve the Developer's applications for bylaw amendments is March 8, 2003 and more than twenty-one days have passed since that date, the Appellant is now out of time to file new appeals. 

[17]   For all the reasons contained in the Developer's written submissions, the Developer seeks an Order from the Commission finding that it does not have the jurisdiction to hear the appeals filed by the Appellant in this matter.

3.  Findings

[18]   The Commission has carefully considered all the written documentation submitted to it and the applicable law.

[19]   As a tribunal, the Commission is a creature of statute with the powers and jurisdiction prescribed by statute.  In this case, the Commissions 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). 

[20]   The Commissions 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)

[21]   In Order LA00-01 Arthur Jennings et al. v. City of Charlottetown, the Commission stated:

The City's decisions to adopt the Official Plan and make the Bylaw are therefore, quite distinct from those decisions undertaken by a municipality where it decides to rezone a parcel of land or amend its bylaw. Typically, municipal bylaws specifically provide for zoning and bylaw amendments by application. The Commission is of the opinion that decisions made under a specific bylaw provision are clearly made by a municipality in the administration of its existing bylaw and, as such, are appealable to the Commission under Section 28 of the Planning Act. In these cases, the Commission will also consider the implications for the official plan. The Commission and its predecessor, the Land Use Commission, have a long-standing history of considering such matters.

[22]   The Commission went on to add the following:

So that the conclusion arrived at herein is clear, the Commission hastens to reiterate its previous position that a dissatisfied person does have the right to appeal a decision by Council to approve or deny a rezoning or bylaw amendment because that is a decision of Council in the administration of the Bylaw.

[23]   The Commission in Order LA00-01 made it very clear that there is a right to appeal a decision by Council to approve or deny a rezoning or bylaw amendment.   The Planning Act does not specifically give the Commission the power to hear appeals concerning amendments to an Official Plan.  Absent compelling arguments and caselaw to the contrary, the Commission finds that it can only examine amendments to an Official Plan within the context of an appeal of a bylaw amendment.

[24]   Upon a review of Exhibit R1, Tab 31 and Exhibit R2, Tab 20, referring to item number 16 on both documents, it is apparent that the bylaw amendments passed first and second reading on February 9, 2004.  However, the space for third reading has been left blank.  Reviewing Exhibit R-4, [which was provided to the Commission, the Appellant and the Developer on April 29, 2004 one day prior to the scheduled hearing] it becomes apparent that third reading had occurred on March 8, 2004, with the approval of the Minister of Community and Cultural Affairs being granted on March 31, 2004.

 [25]   Paragraph 19(a) of the Planning Act reads as follows:

19.  A bylaw shall be made in accordance with the following procedure:

(a)  it is read and formally approved by a majority of councilors on two occasions at meetings of the council held on different days;

[26]   The Commission finds that it was not until March 8, 2004 that the Respondent's council made a final decision.  It was not until that date that the Respondent had passed the bylaw amendments.  The February 9, 2004 resolutions of Council were steps required leading up to the passing of the bylaw by Council on March 8, 2004.  It was not until March 31, 2004 that the bylaw amendment took effect with the granting of ministerial approval. 

[27]   The Commission agrees with the statement cited by the Developer from I.M. Rogers, The Law of Canadian Municipal Corporations, 2nd ed. (Toronto: Carswell, 2003) at page 453 which reads as follows:

A by-law is considered as "passed" when the final action of the council in enacting it is done although it has not been authenticated in the manner prescribed by statute.  It is the final enactment of a by-law by the council such that no further action by it in the nature of confirmation or ratification is required in order to make the by-law effective.  The by-law must be complete in itself so that it effects the purpose for which it was intended although possibly it may not be brought into force until a later date.  A by-law is regarded as being passed when it has received its third reading notwithstanding that the legislature has declared that something else must be done such as the securing of the approval of a municipal board before it is to "come into force."

[28]   Accordingly, the Commission finds that the Appellant appealed the bylaw amendments before they had been passed.  This mistake could have been addressed by filing new appeals within twenty-one days of the passing of the bylaw by the Respondent's council on March 8, 2004, and ultimately later withdrawing the earlier appeals.  However, no such appeal was ever filed.

[29]   Accordingly, the Commission finds that it has no jurisdiction to hear these appeals, and these appeals are hereby dismissed.

[30]   The Commission is concerned, however, that the Respondent did not provide documentation establishing the date of third reading until the day before the hearing.  The Commission expects a decision maker, whether a municipal council or the Minister of Community and Cultural Affairs, as the case may be, to provide full and complete disclosure on a timely basis.  The only exception to such disclosure is documents pertaining to solicitor-client privilege.  Incumbent with this duty to disclose is a duty to provide ongoing disclosure as matters unfold.  An examination of Exhibit R-4 suggests that it was not until April 28, 2004 that the Respondent provided this information to its legal counsel, with said information forwarded to the Commission and the parties the next day.  The failure of the Respondent to provide timely disclosure to its legal counsel, the Commission, the Appellant and the Developer has resulted in a delay of the appeal process. 

[31]   However, in spite of the above noted disclosure issue, Exhibit R1, Tab 31 and Exhibit R2, Tab 20 ought to have provided the Appellant with an indication that the February 9, 2004 resolutions were not the final step in the bylaw approval process.  In addition, no new appeals were filed within twenty-one days of the Appellant having first received the information establishing that third reading had occurred on March 8, 2004.  Had such appeals been filed within that timeframe, the Commission would have had to consider whether the principles set out in Commission Order LA02-01 Barry Copeland v. City of Summerside were applicable.

4.  Disposition

[32]   An Order finding that the Commission is without jurisdiction to hear this appeal will be issued.