Docket LA96001 & LA96002
Order LA96-12IN THE MATTER of two appeals filed by Leo McCormick and Marie Paulowich in connection with a denial by the Municipal Council of North Rustico.
BEFORE THE COMMISSION
on Tuesday, the 12th day of November, 1996.
Linda Webber, Chair
Carl Riggs, Commissioner
Debbie MacLellan, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Background
2. Discussion
3. Findings
Order
Appearances & Witnesses
1. For The Appellants
Witnesses:
Leo R. McCormick
Marie Paulowich2. For the Municipal Council of North Rustico
Witnesses:
Fred LeClair
David Blacquiere
Errol F. Gallant
Reasons for Order
1. Background
On February 19, 1996 Leo R. McCormick and Marie Paulowich (the "Appellants") filed two Notices of Appeal with the Island Regulatory and Appeals Commission (the "Commission"). One was in connection with a denial by the Municipal Council of North Rustico (the "Community") of a request to determine and declare the location of front yards and driveway access for through lots #11, 13, 14 and 15 in the Lantern Hill Subdivision. The second appeal related to the denial by the Community of an application to amend the North Rustico Zoning and Subdivision Bylaws 1994.
The appeal was heard on September 11, 18 and 24, 1996.
The Appellants, verbally and through their documents, complained throughout the appeal about the lack of response to their inquiries from the Community, and in particular their inability to find out what decision had been made on their requests.
These requests were presented in written form by Leo McCormick to David Blacquiere on November 28, 1995. Subsequent to the Council meeting of that date the Appellants were told either that the matter would be dealt with soon, or that their request had been denied – what they were told depended upon with whom they were speaking. Finally, in February of 1996 when they again asked this question of Community Chair Fred LeClair he expressed surprise that they did not yet have a written response. Mr. LeClair then personally obtained from Development Officer David Blacquiere a handwritten letter stating the decision, brought this to the Town Clerk for typing, returned with it to Mr. Blacquiere for his signature, and then delivered it to the Appellants. The letter was dated February 10, 1996 although we are told that the Appellants actually received it on February 9, 1996.
Throughout the presentation of their evidence the Appellants made reference to the fact that they didn't really know when the decision had been made or what was considered in the making of the decision. Since the documents filed by the Community did not assist in answering these questions the Commission asked the Community representatives to provide the Commission with copies of all documents relevant to the issues before it, including minutes of all meetings at which this matter was discussed. The Community responded with considerable documentation, none of which indicated when the decision was made or what factors were considered in the making of the decision.
Only when the Community's representatives took the witness stand did the circumstances surrounding the decision come out. These representatives were: Chairman Fred LeClair, Councillor David Blacquiere, and Councillor Errol F. Gallant.
During this oral testimony there was considerable confusion and debate about when or even whether or not a decision had been reached by the Council on the issues before the Commission.
A request dated September 26, 1995 (Exhibit A3.33) given to Mr. LeClair was not dealt with in September or in October. In November Leo McCormick was told to leave his application with Mr. Blacquiere who would bring it to Council. Apparently Mr. McCormick gave those to Mr. Blacquiere just before the meeting of November 28, 1995.
Councillor Gallant stated that the reason the Minutes of November 28, 1995 did not reflect any decision on these matters was because they were never actually discussed at a meeting and voted upon. No decision was in fact made at any meeting. His recollection was that there was what he called a "pre-meeting meeting" of Councillors who were milling around before the meeting of November 28, 1995 actually began. The requests were discussed in an informal way and the discussions left Councillor Gallant with the impression that the Councillors were not in favor of making the changes proposed by the Appellants. These matters had been raised by the Appellants on other occasions and the Councillors therefore felt familiar with the Appellants' concerns.
Mr. Gallant noted that during this "pre-meeting meeting" at least one Councillor who was present at the meeting itself was not present for any of these informal discussions. He "thought" he knew who it was – he expected it was a Councillor who often arrives at the last minute or late – but couldn't be sure.
Then the Councillors went into the meeting room and began the actual meeting. The item never again came up for discussion that night.
Mr. LeClair and Mr. Blacquiere were less clear in their recollection of events from that evening. Mr. LeClair clearly did his best to remember, believed there must have been a decision, but waffled back and forth because he really couldn't remember. Mr. Blacquiere simply stated he was sure there was a decision. There was disagreement about whether or not there was a vote, but Mr. Gallant's recollection appeared the best of the three.
The minutes of that meeting make only the following reference to the Appellants' requests:
Dave Blacquiere reported that he is to send a letter to Marie Paulowich, informing her that they will have to appeal to I.R.A.C. to have their concerns resolved.
The reference in those minutes is apparently to the letter referred to above, dated February 10, 1996, and signed by David Blacquiere. It states in full as follows:
Dear Mr. McCormick,
In response to your letter dated November 28, 1995 to the North Rustico Community Council, requesting changes to what constitutes an R-1 Zone to allow something different for a portion of Lantern Hill Sub-Division; in concert with the North Rustico Council, we have decided to deny this request, as we feel that the present zoning bylaw meets the intention of our Community Official Plan. The request for the through lots was also denied.
The evidence before the Commission is that the Appellants' request was never raised at any Council meeting after November 28, 1995 up to the date of the letter from Mr. Blacquiere.
The question raised by this background is: Did the Council of the Community of North Rustico make a decision that can be appealed to the Commission pursuant to s. 28 of the Planning Act? If there is no decision, then there can be no appeal – i.e., the Commission has no jurisdiction to hear an appeal in the absence of a decision by the Council.
Before dealing with this question the Commission asked both parties to comment on this issue. The Appellants' take the position that the letter of February 10, 1996 clearly indicates that a decision was made by the Council and so the Commission has jurisdiction to hear the appeal.
Part of the response of the Council is reproduced as follows:
A village meeting was held on September 24th, 1996 at 7:00 p.m., all councillors were in attendants. [sic]
1) The question was does Council agree with the meeting before the meeting on November 28, 1995, which denied the change of zone for the Lantern Hill S/D. All Council members were in agreement to deny the zone change then and still are except Leo McCormick who would not vote because of conflict of interest.
2) The question was does council agree with the meeting before the meeting on November 28, 1995 which denied that lots number 11, 13, 14 and 15 would have to access from Lantern Hill road only. This was denied then and still is, but all were not in agreement then nor are now. Leo McCormick did not vote because of conflict of interest.
3) The council voted to agree with the meeting November 28, 1995 to send a letter to Marie Paulowich informing her that they will have to appeal to I.R.A.C. to have their concerns resolved. The vote was 3 to 2 in favour, Leo McCormick did not vote because of conflict of interest.
4) The council also voted to agree with the letter given to Leo McCormick by Fred LeClair from David Blacquiere dated February 10, 1996 which denies both through lots and zone change. Vote was 3 to 2 in favour. Leo McCormic [sic] did not vote because of conflict of interest.
These comments in the Commission's view confirm that there was no vote taken on the issues raised by the Appellants on November 28, 1995. The meeting of September 24, 1996 is at best a ratification of the conclusions believed to have been reached by an informal gathering of some Councillors prior to the meeting of November 28, 1995.
The Commission does not doubt the good intentions of the Councillors either in November of 1995 or September of 1996. However, the question that remains is what is the legal significance of the manner in which the Council handled the requests of the Appellants?
2. Discussion
Many problems are raised by the manner in which the Council of North Rustico dealt with this matter.
If in fact a decision had been made on November 28, 1995, the failure to notify the Appellants of this decision potentially jeopardized their right of appeal. An appeal is to be filed within 21 days of the decision of Council. How can they appeal if they don't know the decision? In this case they were given notice of the decision more than two months after the date Council is now saying it made its decision. Such an action violates procedural rules of fairness.
There is no question or debate that the requests put forward by the Appellants were never dealt with at the formally convened meeting of the Council of North Rustico on November 28, 1995. The minutes make no reference to any discussion. They do not even identify the issues that are raised.
A perusal of the many minutes filed as exhibits in connection with this matter indicate that the Clerk is very thorough and detailed when taking the minutes. The discussion on matters is reported fully. The lack of reference in the minutes of November 28, 1995 to any discussion that evening corroborates the oral testimony and confirms that these matters were not discussed at the meeting.
The minutes do however, suggest that a conclusion had been reached on some unidentified "Marie Paulowich concerns" because the Development Officer reported he would advise her of the conclusion reached.
Municipal law is clear in stating that municipal councils can only act by decisions of the council itself, at meetings at which a quorum of councillors are present.
Councils can only exercise the power of the corporation which they represent by action in the proper form, either by resolution or bylaw passed at a regularly constituted meeting by a majority of the councillors present provided that a quorum is constituted. Like all corporations, a municipality can only be bound in the manner prescribed by law...They [Councillors] must give a collective judgment as a body and not as individuals; such assent must take the form of a bylaw or resolution. It follows that a mere verbal understanding by all members even if arrived at in a meeting is insufficient in the absence of any record thereof. This fundamental rule is to the end that corporate action may be brought about through discussion of and deliberation on proposed measures." (Rogers, The Law of Canadian Municipal Corporations, 2nd Ed., pp. 234-235)
For such meetings to occur they must begin at a particular point in time. At that time the Chair must determine if there is a quorum and the Clerk must begin to take minutes.
The provisions of the Municipalities Act, R.S.P.E.I. 1988, Cap. M-13 confirm these principles.
There are numerous good reasons for requiring such a procedure. Those with requests to be put before Council have the right to know how their requests were treated: what concerns were raised at the meeting, who was present and how they voted. As well, Councillors have the right to be present when decisions are made. Councillors bring different perspectives to a meeting and have the right to express their concerns on all issues. While some Councillors may have one opinion going into a meeting, after hearing the views of others they may change their minds. The one Councillor not present could be the one who brings out the issues that sway the others.
When dealing with matters such as requests from residents, Council is acting in a quasi-judicial capacity and in doing so must adopt fair procedures. For example, those affected by decisions have the right to know that only relevant matters were considered during the hearing. The minutes should be evidence of what was considered. The right to be present at the meeting also aids in ensuring this. In this case, both the Development Officer and the Chair are reported to have said that the reason for turning down the request to amend the bylaw was that the Council didn't want to spend another $9,000 on the bylaws, since that's what it cost to have the Official Plan and Bylaws developed. Mr. Blacquiere commented at one point that the reason Councillors wouldn't amend the bylaw was because they felt if they amended for one everyone else would want a change. If these factors were considered, the Appellants have the right to know and challenge them.
While Council may feel that this situation "is not so bad" because it was most Councillors meeting right before the scheduled meeting, the concerns raised above remain. In addition, if this type of situation is considered acceptable why not accept a chance meeting of a few Councillors and the chair at the grocery store or hardware store? For a council with a chair and three councillors, two of them going together to the store could easily meet up with the third. It's a quorum. But it's not a properly constituted public meeting at which Council business can be transacted.
This point was made by the Supreme Court of Canada over 100 years ago in a case involving school trustees and a one-room school. The trustees who tried to move the school were found to be without legal authority to do so because the decision had not been made at a properly constituted meeting:
Now the law is that the members of a corporation aggregate cannot separately and individually give their consent in such a manner as to oblige themselves as a collective body, for in such a case, it is not the body that acts(1). It is only at a lawful meeting of the corporate body that the corporation can act or do anything. (Pictou School Trustees v. Cameron, [1878] 2 S.C.R. 690, at p. 713)
The law on this type of action has never been changed.
These rules and requirements are not onerous provisions requiring extra work. They simply ensure that Council meetings will be conducted in public, proper notice will be given to Councillors of these meetings, and all Councillors who attend will have an opportunity to speak and vote on the issues. The Clerk's responsibility to record all resolutions, decisions and proceedings adds the assurance that these matters will be on record for all to know. In this particular case, if such procedures had been followed the Appellants would have known by a resolution recorded in the minutes that their request had been denied.
While it is true that some actions of council members can be ratified by the council as a whole, we do not believe that a decision of this type can be made valid by such an act of ratification. This type of decision requires consideration of the merits of the application and ratification cannot be a substitute for such consideration. There is still no record of the reasons for the Council's position, and no opportunity for all councillors to properly debate the issue.
While the Commission understands and sympathizes with the desire of the Appellants to have this entire matter dispensed with once and for all, the problem created by the Community's handling of these issues are too serious to be either ignored or bypassed. It is not acceptable for Community Councils to ignore or bypass the law. The responsibilities given to such Councils are significant and impact on large numbers of people. And the law requires that for the Commission to review actions of a Council on appeal, there must have been a decision of Council upon which to base the appeal. Otherwise the Commission has no jurisdiction.
During the hearing some complaints were raised by Councillors about the Provincial Government having "dumped" this planning responsibility on them without giving them any training. That is neither an excuse nor a reason. If a Community wants to run its own affairs it must accept all the dimensions of that responsibility. Planning is quite complicated and requires considerable knowledge of planning rules and regulations. If Councillors don't personally have this knowledge they have a responsibility to seek professional help from qualified planners. Otherwise, the numerous problems identified during this hearing will likely continue.
3. Findings
No valid decision has been made by the Community which may be appealed to the Commission. The matter remains before the Council of North Rustico to deliberate and decide at a properly constituted public meeting.
IN THE MATTER of two appeals filed by Leo McCormick and Marie Paulowich in connection with a denial by the Municipal Council of North Rustico.
Order
WHEREAS Leo R. McCormick and Marie Paulowich filed two Notice of Appeal with the Commission;
AND WHEREAS the Commission heard the appeals at a public hearing conducted in Charlottetown on September 11, 18 and 24, 1996 after due public notice;
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. As no decision appeallable to the Commission has been made by the Council of the Community of North Rustico, the appeal is dismissed for lack of jurisdiction.
DATED at Charlottetown, Prince Edward Island, this 12th day of November, 1996.
BY THE COMMISSION:
Linda Webber, Chair
Carl Riggs, Commissioner
Debbie MacLellan, 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.
