Docket LA96015
Order LA96-10

IN THE MATTER of an appeal pursuant to Section 28 and 37 of the Planning Act by Sobeys Inc. against a decision by the Department of Provincial Affairs and Attorney General to issue a Provincial Development Certificate on April 25, 1996 and a decision by the City of Charlottetown to issue a Building Permit on April 25, 1996.

BEFORE THE COMMISSION

on Wednesday, the 28th day of August, 1996.

John L. Blakney, Vice-Chair
Carl Riggs, Commissioner
Anne McPhee, Commissioner

Order

Contents

SUBMISSIONS

Reasons for Order

I. Introduction

II. Discussion & Findings

Order

Submissions

1. For the Appellant - Sobeys Inc.

Counsel:
Mark Ledwell and Charles Keizer

2. For the Developer - APM Landmark Inc.

Counsel:
William Lea, Q.C.

3. For the City of Charlottetown

Counsel:
David Hooley

4. For the Minister of Provincial Affairs and Attorney General

Counsel:
 Cyndria Wedge

Reasons for Order

I. Introduction

In March 1996 Prince Edward Holdings Inc. and APM Landmark Inc. made application to the City of Charlottetown (the City) to consolidate part of 447 and 449 University Avenue with 455 University Avenue.

In March 1996 Prince Edward Holdings Inc. and APM Landmark Inc. made application to the City for a variance to the side yard and rear yard for property located at 455 University Avenue.

In March 1996 APM Landmark Inc. (the Developer) made application for a Demolition and Building Permit to the City, to demolish the existing Kirkwood Motel, to consolidate approximately 28 ft. of land from the University Plaza and construct a new 45,500 s.f. grocery store to within (2) two feet of the side yard and (0) zero feet of the rear yard.

On March 28, 1996 the City made application to the Minister of Provincial Affairs and Attorney General (the Minister) for a provincial development certificate.

On April 22, 1996 the City issued a Demolition Permit (permit number 9167) to APM Landmark Inc.

On April 25, 1996 a three party development agreement. was signed by the Minister, the City and Prince Edward Holdings Inc. and APM Landmark Inc.

On April 25, 1996 the Minister issued a provincial development certificate for the development of a retail store of approximately 45,550 square feet to be constructed at 455 University Avenue, Charlottetown.

On April 25, 1996 the City issued a Building Permit (permit number 9151) to APM Landmark Inc. subject to a Development Agreement dated April 12, 1995 between the City of Charlottetown and Prince Edward Holdings Inc. and Wildan Properties Inc.

On May 2, 1996, Sobeys Inc. appealed both the issuance of the provincial development certificate and the Building Permit to the Island Regulatory and Appeals Commission (the Commission).

By letter to the Commission dated June 17, 1996 William Lea, legal counsel for APM Landmark Inc., raised four preliminary issues. Submissions, in response to these preliminary issues, were filed with the Commission by all parties.

II. Discussion & Findings

1. Will the Commission stay its proceedings while the question of its jurisdiction is brought to the Court for determination?

APM argues that the appeal provisions in s.28 and s.37 of the Planning Act are ultra vires because they do not specify the type of hearing to be held, and asks that the Commission stay its proceedings while this matter is reviewed by the Court. APM argues the Commission should submit this issue to the Court of appeal for determination.

The Appellant submits that the issue as raised by APM, in essence, is not constitutional but rather one of statutory interpretation and construction. The rule of law in the context of the Planning Act and the Island Regulatory and Appeals Commission Act is misapplied by APM. Sobeys contends that the Commission should not state a case to the court nor should it adjourn these proceedings - to do so would be to the prejudice of Sobeys' appeal.

The City supports APM in that ss. 28 and 37 offend the rule of law and are ultra vires. In addition, the City's positions on procedure are outlined in its brief at page 2.

The Minister's position, as put forward by its legal counsel is that the proper forum to determine the constitutionality of the legislation is the Supreme Court and not the Commission. The Minister takes no position as to whether the Commission should stay its proceedings.

Whenever asked to stay a proceeding, the Commission considers both the law and the balance of interests involved. If the parties and the Commission agree the issue is simple.

When, as here, the parties do not agree and there are competing interests, then the Commission must weigh all of these interests and the legal question in issue.

In making its decision the Commission takes guidance from the judgments written by both Chief Justice Nicholson and Justice MacDonald (as they then were) in the case of Re Gasoline Dealers Association, (1981) 37Nfld. & P.E.I.R. 46, where they state as follows:

…and further, that in future where a question of jurisdiction of the Public Utilities Commission is raised, the question should be submitted to the court as soon as the question is raised so that unnecessary expense on the parties of an abortive hearing may be avoided.

(Nicholson, C.J. at p. 66)

. . .

As a matter of practice and as a guide to the Commission, it would be desirable if it submitted any stated question to this Court prior to it conducting any intended hearing, which in this case apparently took several days at great expense to the parties involved. (Emphasis added)

(MacDonald, J., at p. 66)

The issue raised by APM does not relate to the merit of the appeal but goes to the very jurisdiction of the Commission. According to the Gasoline Dealers Association case it would be prudent for the Commission to have this matter decided by the Court. Given the potential implications of this argument for all appeals pursuant to Sections 28 and 37 of the Planning Act it appears imperative for the Commission to expedite the process and obtain a decision on this matter. Therefore, the Commission, pursuant to the provisions of Section 14.(1) of the Island Regulatory and Appeals Commission Act will be stating a case in writing for the opinion of the Appeal Division of the Supreme Court on the issue pertaining to the constitutionality of the legislation.

In light of this decision, the Commission will not make a decision on the other preliminary issues at this time and after considering the submissions put forward by all parties has decided to stay its proceedings, pending the decision of the Court of Appeal on this matter.

IN THE MATTER of an appeal pursuant to Section 28 and 37 of the Planning Act by Sobeys Inc. against a decision by the Department of Provincial Affairs and Attorney General to issue a Provincial Development Certificate on April 25, 1996 and a decision by the City of Charlottetown to issue a Building Permit on April 25, 1996.

Order

WHEREAS Sobeys Inc. has appealed a decision by the Department of Provincial Affairs and Attorney General to issue a provincial development certificate and the City of Charlottetown to issue a building permit.

AND WHEREAS the Commission has received written submissions from all parties pertaining to preliminary issues.

AND WHEREAS the Commission has issued its findings on these preliminary issues in accordance with the Reasons for Decision 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 finds that the circumstances in this case warrant a stay of proceedings;

DATED at Charlottetown, Prince Edward Island, this 28th day of August, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Carl Riggs, Commissioner

Anne McPhee, 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.