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Docket LA12012
Order LA13-01

IN THE MATTER of an appeal by Henry Gallant of a purported decision of the Minister of Finance, Energy and Municipal Affairs.

BEFORE THE COMMISSION

on Friday, the 11th day of January, 2013.

Maurice Rodgerson, Chair
John Broderick, Commissioner

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Order

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On September 11, 2012, the Appellant Henry Gallant (Mr. Gallant) filed a Notice of Appeal form with the Island Regulatory and Appeals Commission (the Commission) under section 28 of Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Planning Act).

Mr. Gallant's Notice of Appeal form made reference to a September 10, 2012 decision of the Minister of Finance, Energy and Municipal Affairs (the Minister).  Mr. Gallant alleged that his proposal to subdivide his land had been rejected by the Minister. 

On September 13, 2012 Commission staff forwarded a letter to Mr. Gallant and to Alan Robison (Mr. Robison) of the Minister's staff. 

On September 18, 2012 Commission staff received an email from Mr. Robison noting in part: 

Our office has not issued an official decision on this case. We are still working with Mr. Gallant (or at least we thought we were) on possible options. 

On September 19, 2012 Commission staff wrote the parties, noting the position of the Minister, reviewing the wording of section 28 of the Planning Act and identifying a jurisdictional matter.  Staff's letter invited written submissions from the parties on the jurisdictional issue.  Staff's letter also invited Mr. Gallant to withdraw his appeal. 

No written submissions were filed by Mr. Gallant and no additional written submissions were filed on behalf of the Minister. 

Subsection 28(1) of the Planning Act reads in part: 

28. (1) Subject to subsections (1.2) to (4), any person who is dissatisfied by a decision of the Minister that is made in respect of an application by the person, or any other person, pursuant to the regulations for

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(b) a preliminary approval of a subdivision or a resort development;

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may appeal the decision to the Commission by filing with the Commission a notice of appeal. 

Rule 29 of the Commission's Rules of Practice and Procedure for Hearings reads as follows: 

29.0 Hearing Limited by Jurisdictional Issues

1.  When the Commission believes that it may lack jurisdiction to hear a particular appeal or application, the Commission may direct that the question of jurisdiction be heard, either through oral or written submissions, and determined prior to a hearing on the merits of the appeal or application. 

2.  Where it is found that the Commission lacks jurisdiction pursuant to subsection (1), the Commission will not hear the application or appeal.  

In the present case, the Commission finds that Mr. Gallant believed that the Minister had made a decision and thus he filed an appeal.  However, the Commission finds that the Minister's staff had not yet made a decision and was still working with Mr. Gallant on possible options. 

A pre-condition to the right of appeal is that there be a decision which may be appealed.  The Commission therefore finds that it lacks the jurisdiction to hear Mr. Gallant's appeal as the Minister had not made a decision.   

Pursuant to Rule 29, the Commission will not hear Mr. Gallant's appeal filed on September 11, 2012. 

However, the Commission wishes to make it clear that Mr. Gallant may file a new appeal, pursuant to the requirements of section 28 of the Planning Act, if he is dissatisfied by a decision of the Minister.  The Commission will expect that any such appealable Ministerial decisions will be ones made in writing and the Commission will also expect that a copy of such a written decision will be attached to a Notice of Appeal form.