Order LA05-14 - Docket LA05010 - Planning Appeal - Donald Claude Bergman and Sheldon R. Adams v. Minister of Community and Cultural Affairs (Dec. 5, 2005)

Docket: LA05010
Order LA05-14

IN THE MATTER of an appeal filed by Donald Claude Bergman and Sheldon R. Adams of a series of decisions of the Minister of Community and Cultural Affairs from September 1973 to June 1984.

BEFORE THE COMMISSION

on Monday, the 5th day of December, 2005

Maurice Rodgerson, Chair
Brian J. McKenna, Vice-Chair
Weston Rose, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1.    For the Appellants:

Donald Claude Bergman

2.   For the Respondent:

Counsel:
Robert A: MacNevin

Reasons for Order

1.  Introduction

[1] This is an appeal filed on May 19, 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 Donald Claude Bergman and Sheldon R. Adams (the Appellants) concerning a decision of the Minister of Community and Cultural Affairs (the Respondent) on September 25, 1973 to approve what is commonly referred to as the Genge subdivision located at Desable.

[2] The Commission is aware that several revisions to the Genge subdivision were applied for and approved, with the most recent revision approved by the Respondent in June 1984.

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

2.  Discussion

[4] The Commission provided the parties with an opportunity to file written submissions by September 23, 2005 and written rebuttal submissions by October 7, 2005. The Appellants filed detailed written submissions with the Commission on September 19, 2005 and detailed rebuttal submissions on September 29, 2005. The Respondent filed detailed submissions on September 23, 2005 and detailed rebuttal submissions on October 7, 2005.

Appellants' Position

[5] The Appellants' concluding statement contained in their September 19, 2005 submission reads as follows:

Concluding Statement

In summary the appellants have clearly illustrated that the 21 day clause relative to the Commission's jurisdiction does not apply due to 1) the lack of any formal notification on the part of the Province to the owners regarding the restrictions placed on their property meaning that the commencement of the 21 day period has yet to begin, and 2) the fact that the approval process was never formally completed and the Province's representative's acknowledgement that the subdivision roads are approved, proposed roads still requiring completion. These facts make the Province's legal obligations to formally advise of the building restriction and to complete the development process as required in the Planning Act regulations ongoing and current, with failure to do so on request by the owners, subject to appeal to the Commission. The Minister should not be allowed to hide behind the fact that he has not formally responded to the request relative to the completion date of the approved, proposed roads, as failure to respond over a reasonable period of time constitutes an unannounced decision to not proceed as requested. [emphasis contained in the original document]

[6] The Appellants' summary contained in their September 29, 2005 submission reads as follows:

SUMMARY

In summary, the Appellants find no evidence in the Respondent's submission that changes their view of this matter. The relief sought remains the completion of the subdivision roads to meet the Planning Act requirements in effect in 1973, and to bring the subdivision into compliance with the requirements of a single family dwelling use subdivision, as approved. The Appellants therefore continue their appeal of the incumbent Minister's decision first announced on Sept. 23, 2005 that the Province will not construct the approved, proposed roads in the Genge Subdivision - Phase 1, and make them public. [emphasis contained in the original document]

[7] While not requested by the Commission, the Appellants sent an email dated October 7, 2005 to Commission staff that reads as follows:

We have only two comments regarding Respondent's rebuttal submission which we trust that the Commission will receive or figure out by itself on review of the relevant documentation.

1) The grounds for our appeal have not changed as it was always the inferred decision on the part of the Minister to not complete the roads. It became the actual decision when it was articulated in Resondent's original submission. Our Appeal Notice stated as follows: "Our contention is that the failure of the Minister to render a decision on this matter within a reasonable time frame constitutes a decision on his part to not proceed as requested." That in our mind is an inferred decision.

2) We qualified the sections of the Act which we quoted as having been received from Mr. MacNevin who identified them as being in effect at the time of approval of the subdivision. (see our original submission). Also the document circulated by Mr. S Bishop had some of these regulations included in it. If they were not in effect, how or why would they be in his document? Also we have received no Town Planning Act mentioned by Mr. MacNevin, and seriously question that it was not superseeded prior to Sept., 1973 by the document that he forwarded to us.

D C Bergman

[8] It would appear to be the submission of the Appellants that they request the Commission to find that it does have the jurisdiction to hear their appeal dated May 19, 2005.

Respondent's Position

[9] From a review of the Respondent's submissions, it is apparent that the pith and substance of the Respondent's position is that, given the reasoning in Booth and Peak v. Island Regulatory and Appeals Commission 2004 PESCAD 18 (October 4, 2004), the twenty-one day appeal period set out in the Planning Act started at the time when the Appellants purchased their lots in the Genge subdivision. In the alternative, the Respondent contends that the appeal period started following the receipt by the Appellants of a March 30, 2001 letter from realtor Chris Roumbanis informing them of "the situation". In the further alternative, the Respondent states:

At the very latest, the 21 day period begins in or around July 2003 when the Appellants launched their e-mail, letter and media campaign against Government.

[10] The Respondent requests that the Commission find that it does not have the jurisdiction to hear this appeal, does not have the authority to grant the relief being sought and that this appeal be dismissed.

3. Findings

[11] The Commission has considered the written submissions of the parties and finds that it does not have the jurisdiction to hear this appeal.

[12] In Booth and Peak v. Island Regulatory and Appeals Commission 2004 PESCAD 18 (October 4, 2004) Justice Weber reviewed past judicial decisions with respect to the issue of when an appeal period begins to run. Justice Weber then stated the following commencing at paragraph 20 of the Court's decision:

[20] All these cases express a concern about ensuring that a right of appeal is a real rather than an illusory right.

[21] I find that Re Hache and Minister of Municipal Affairs (1969), 2 D.L.R. (3d) 186 (NBSCAD) applies in this province and the appeal period will begin to run when an appellant has received notice of the decision. This may be specific notice or general notice through posting or publication or by some other means. The bylaws of a community could establish the type of public notice that will be given upon the issuance of a building permit, e.g. publication in a newspaper or newsletter, posting in the community office. If the public can become aware of the decision by way of this public process then the process will likely satisfy the requirements of notice.

[22] Where, as in this case there is no process of public notice set out in either the Planning Act or the bylaws of the community, then time can only begin to run when an appellant has actual notice of the decision. Just seeing the mobile home on the property would not be notice of the issuance of a building permit for that home. It might have been placed on the property without a permit.

[23] Such notice of a decision is essential to give meaning to the appeal process. If this were not the case, the right to appeal would be illusory, rendering the statutory right of appeal meaningless. It would not be reasonable to interpret the statute in a way that renders a given right meaningless. The law does not specify the manner in which notice to the public must be given but does state that there must be some public notice of a decision or specific notice to persons affected by the development -- before an appeal period can be said to run. That being said, an appellant could not abuse this right by deliberately delaying inquiry after he/she had been put on notice that a decision appears to have been made. In the present case, the mobile home was placed on the property and the appellants became aware of that fact on June 24, 2003. There was then some responsibility on them to inquire about whether or not a permit had been issued.

[13] The Commission finds that the Appellants had specific notice by April 2001 at the very latest, after having received the letter from Mr. Roumbanis, that the Genge subdivision had received approval without roads having been constructed by the developer and deeded to the Province of Province of Prince Edward Island. The Commission finds that the twenty-one day appeal period provided for under subsection 28(1) of the Planning Act commenced at that time. The onus was then on the Appellants to file an appeal within the twenty-one day appeal period. However, the Appellants did not file an appeal with the Commission until over four years later. As the timeframe for filing an appeal has long expired, the Commission finds that it is without jurisdiction to hear this appeal.

4. Disposition

[14]   An Order stating that the Commission has no jurisdiction to hear this appeal will therefore issue.

Order

WHEREAS the Commission on May 19, 2005 received an appeal from Donald Claude Bergman and Sheldon R. Adams (the Appellants) concerning a decision of the Minister of Community and Cultural Affairs (the Respondent) on September 23, 1973 to approve the Genge subdivision located at Desable;

AND WHEREAS the evidence before the Commission indicates that several revisions to the Genge subdivision were applied for by the developer and approved by the Respondent, the most recent of which occurred in June 1984;

AND WHEREAS the Commission provided the parties with an opportunity to file written submissions on the issue of whether the Commission has the jurisdiction to hear this appeal;

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 December, 2005.

BY THE COMMISSION:

Maurice Rodgerson, Chair

Brian J. McKenna, Vice-Chair

Weston Rose, 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.