Docket: LA05002
Order LA05-04

IN THE MATTER of an appeal by Sandra MacDonald of a decision of the Town of Cornwall dated December 15, 2004.

BEFORE THE COMMISSION

on Thursday, the 5th day of May, 2005.

Maurice Rodgerson, Chair
Weston Rose, Commissioner
Anne Petley, 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 filed by Sandra MacDonald

2.   For the Respondent

Written submissions file by Janice Harper, Planning and Development Officer

Reasons for Order

1.  Introduction

[1]   This is an appeal filed on January 11, 2005 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 Sandra MacDonald on behalf of Almac Truck Repair (the Appellant) concerning a December 15, 2004 decision of the Town of Cornwall (the Respondent) to deny a request by the Appellant for a permit for a truck repair facility at 4 York Point Road (North River Rink property) located in Cornwall.

[2]   Following the receipt of the file from the Respondent, Commission staff informed the parties that the appeal appeared to have been filed beyond the twenty-one day appeal period set out in subsection 28(1) of the Planning Act.  The Commission invited the parties to file written submissions on the issue of whether the Commission has the jurisdiction to hear the appeal. The Appellant's submission was received on March 9, 2005 and the Respondent's submission was received on March 10, 2005.

[3]   This order deals solely with the issue of whether the Commission has the jurisdiction to hear this appeal.

2.  Discussion

Appellant's Position

[4]  The Appellant submits that on December 27, 2004 they received a letter dated December 20, 2004 advising them of the Respondent's decision.  The Appellant takes the position that the appeal was filed well within the twenty-one day period following receipt of the Respondent's letter. 

[5]  The Appellant requests that the Commission find that it does have the jurisdiction to hear the appeal on its merits.

Respondent's Position

[6]  The Respondent submits that the Appellant was made aware of the Council meeting at the time of application.  The decision was made at a public meeting of the Respondent's Council.  The Appellant was notified of the decision verbally and in writing.  The Respondent takes the position that the Appellant had adequate time after public notification to file her appeal. 

[7]  As the Appellant failed to file the appeal within the time period set out in subsection 28(1) of the Planning Act, the Respondent requests that the Commission find that it does not have the jurisdiction to hear this appeal.

 3.  Findings

[8]  After a careful review of the evidence, the submissions of the parties, and the applicable law, the Commission finds that it does not have the jurisdiction to hear this appeal.  The reasons for the Commissions decision follow. 

[9]  Subsection 28(1) of the Planning Act reads as follows: 

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.

[10]  In Order LA00-06 Chester Campbell v. Town of Stratford the Commission stated:

Here we have a decision of Council which was made at a public meeting on October 18, 1999.  In addition, according to the minutes of this meeting (Exhibit R5), Council pronounced or delivered its decision to the public at this meeting.

As to the issue of whether the appeal was filed within the prescribed time period, subsection 23(5) of the Interpretation Act, R.S.P.E.I. 1988, Cap. I-8 states:

ss.23(5) In the calculation of time not expressed as clear days, or other period of time not referred to in subsection (4), the first day shall be excluded and the last day included.

Having considered the facts of this case and the statutory provisions of the Act, it is the opinion of the Commission that the twenty-one day period for filing a Notice of Appeal begins to run on the day after Council made its decision at a public meeting and not when the decision was conveyed to the Appellant.

The Commission has no inherent authority to make law or, in this case, to extend the time period for filing a Notice of Appeal.  In this case, for the Commission to find that the appeal period begins to run on the date of notification would be tantamount to creating new law, for which the Commission has no legal authority.

The Commission concurs that the October 21, 1999 letter from the Town official to Mr. Campbell unquestionably contained wrong information regarding the time period for filing a Notice of Appeal.  The Commission also accepts that Mr. Campbell was misled by this information and sympathizes with the situation this has created for him.  However, the Commission does not believe it has a legal basis for addressing this error by the Town official, and is bound by the governing statute in this case, the Planning Act.  Therefore, notwithstanding the misleading information in the October 21, 1999 letter, the final day for filing a Notice of Appeal in this case was November 8, 1999.

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

[11]  More recently, in Order LA02-01 Barry Copeland v. City of Summerside (Copeland v. Summerside), Mr. Copeland had written the City requesting written clarification of the City's decision prior to the expiry of the appeal period.  He received a copy of the minutes, the content of which led him to believe his understanding was correct.  He was satisfied with what he believed was the City's decision, and therefore did not file an appeal.  The City, well aware of his interpretation of the matter and interest in filing an appeal, moved to clarify the matter the following month without informing him that this clarification now made his interpretation incorrect.  Many months later, Mr. Copeland learned of the real nature of the City's decision and then filed an appeal.  The Commission found that a reasonable person, reviewing the same information as provided to Mr. Copeland, would have come to the same conclusion he had as to the nature of the City's decision.  The Commission determined that Mr. Copeland was mislead as to the actual decision made, and held that the 21 day appeal period set forth in subsection 28(1) of the Planning Act did not commence until Mr. Copeland became aware of the actual decision made. 

[12]  In the present matter, there is no evidence before the Commission that the Respondent mislead the Appellant and therefore this appeal does not meet the Commission's test set out in the Copeland Order referred to above.  The Respondent's decision was made at a public meeting of Council.  The Respondent prepared a letter to inform the Appellant shortly after the Respondent's Council had made its decision.  While the letter was not received until the first business day after the Christmas holidays, the decision was made public on December 15, 2004 and the Commission finds that the twenty-one day time period commenced from that date and expired on January 5, 2005.  As the Notice of Appeal was not filed until January 11, 2005, the appeal was filed beyond the statutory appeal period and the Commission therefore finds that it does not have the jurisdiction to hear this appeal.

[13]  The Commission notes the issue of the expiry of the 21 day appeal period, prior to the filing of a Notice of Appeal, has arisen a number of times in matters relating to the Planning Act.  It appears appellants are not always aware of the importance of filing an appeal within 21 days of the actual decision.  It is in the interests of all parties that appellants be aware of their right to appeal.  To that end, the Commission suggests that, in future, letters to an interested party, informing of a Council or staff decision which is subject to the appeal provisions of the Planning Act, clearly refer to the date the decision was made and that the party has a right to appeal to the Commission within twenty-one (21) days from the date of that decision.  As well, it might be helpful to amend future planning related application forms to include a brief statement to the effect that there is a right to appeal a decision made on the application within twenty-one (21) days of the decision date.  While these suggestions are directed in this Order to the present Respondent, they apply equally to all municipal and ministerial decision makers referenced under subsection 28(1) of the Planning Act.

[14]  While not in a position to require the aforementioned suggestions, the Commission believes that voluntary compliance would benefit all parties.  Appellants would be more fully aware of the appeal requirements, respondents could direct resources to the substantive issues of the appeal and appeals would be heard on their merits rather than on preliminary jurisdictional matters.  In situations where the 21 day appeal period expired with no appeal filed, the existence of such clear notification would assist developers who had received approval to proceed with a development with less likelihood of an appeal being filed weeks, months or even years later.

4.  Disposition

[15]  An Order stating that the Commission does not have the jurisdiction to hear this appeal will therefore be issued.

Order

WHEREAS  Sandra MacDonald on January 11, 2005 filed a Notice of Appeal of a decision of the Town of Cornwall dated December 15, 2004;

AND WHEREAS the Commission considered the appeal following the receipt of written submissions from the parties;

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 May, 2005.

BY THE COMMISSION:

Maurice Rodgerson, Chair

Weston Rose, Commissioner

Anne Petley, Commissioner

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.