Docket LA96023/LA96022
Order LA96-14

IN THE MATTER of an appeal by Gary Moore against a decision by the Minister of Provincial Affairs and Attorney General.

- and -

IN THE MATTER of an appeal by Ken Sesko against a decision of the Minister of Provincial Affairs and Attorney General.

BEFORE THE COMMISSION

on Monday, the 18th day of November, 1996.

Linda Webber, Chair
James Nicholson, Commissioner
Clayton Bulpitt, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Reasons for Decision

4. Disposition

Order

Appearances & Witnesses

1. For the Appellants

Witnesses:

Gary Moore
Ken Sesko
Sandra Sesko

2. For the Department

Witnesses:

Garth Carragher
John Pickard

3. For the Developer

Counsel:

John R. Diamond

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 by Gary Moore and Ken Sesko (the Appellants) against a decision by the Minister of Provincial Affairs and Attorney General (the Minister) to approve in principle a subdivision application for a summer cottage lot to be severed from a parcel of land owned by Leith Stretch (the Developer) located at Long Creek.

The decision by the Minister to grant approval in principle was made on July 25, 1996 (Exhibit D2).

On August 19, 1996 both Gary Moore and Ken Sesko submitted separate notices of appeal (Exhibit A1.1 and A2.1) to the Island Regulatory and Appeals Commission (the Commission).

Upon receipt of the notices, Commission staff notified the parties involved that the time for filing an appeal may have expired as it would appear both notices were filed beyond the 21 day appeal period pursuant to the provisions of Section 28 of the Planning Act and as a result the Commission may not have the jurisdiction to hear the appeals. All parties filed submissions with the Commission pertaining to this issue.

In addition to the submissions filed, the Commission conducted a hearing to receive further information from the parties on the preliminary matter of jurisdiction.

For administrative purposes the appeal of Gary Moore and the appeal of Ken Sesko were combined and heard during the same hearing.

The hearing was held on October 10, 1996.

2. Discussion

The Appellants

Appellant Moore takes the position that when he contacted representatives from both the Commission and the Department of Provincial Affairs and Attorney General to discuss the appeal process, he was not provided with all the "pertinent information".

In his letter to the Commission dated August 27, 1996 Mr. Moore states:

When I spoke with Brian [SIC] Carragher at Gordon Drive, I was told that approval could only be given once the planning office receives a survey of the proposed severance. Then, I would have 21 days from that date to file an appeal. When I called your office to confirm that this is in fact the proper procedure, I was given the same information … 21 days after final approval to submit an appeal.

…

Had the proper information been provided to me, my appeal, which plainly states my reasons for objecting to this severance would have been received by your office before the 21 day timeframe had expired.

…

(Exhibit A1.2)

Based on the reasons given, Mr. Moore requests that the Commission hear this appeal.

Mr. Sesko states that on August 14, 1996 he and his wife discussed the matter with representatives of the Commission who informed them that they "had 21 days from the date of approval" to file an appeal (Exhibit A2.2). A copy of the appeal provisions of the Planning Act were provided to them at that time.

On August 15, 1996 Mr. Sesko submits that he filed a letter with the Department of Provincial Affairs and Attorney General requesting that he and his wife be notified when approval was given (Exhibit A2.3).

Mr. Sesko states that on August 19, 1996, he and his wife were contacted by John Pickard, Supervisor of Subdivision Development, who informed them that approval in principle for the severance had been given on July 25, 1996 and because they had submitted a letter to the Department on August 15, 1996, they "were within the 21 day time frame".

Appellant Sesko contends that at no time during any of the discussions with representatives of the Commission or the Department was he informed that there were "two decisions" to be made - approval in principle and final approval. The Appellant submits that if he was properly informed he would have appealed within the 21 day period. He believes that both he and his wife had been "lulled into a false sense of security and were being misled on what were the actual terms of appeal" (Exhibit A2.2).

Mr. Sesko requests the Commission hear the appeal.

The Developer

In a letter to the Commission dated September 4, 1996, John Diamond submits on behalf of the Developer "their [the Appellant's] appeal is outside the time period allotted for the filing, therefore the appeal should be dismissed accordingly" (Exhibit DD1).

Mr. Diamond contends that the Commission does not have the authority to extend the time for filing a notice of appeal beyond the 21 day period and therefore the Commission has no jurisdiction to hear this appeal.

The Minister

In a letter to the Commission dated September 5, 1996 Don Walters states on behalf of the Minister that "… neither person filed a proper notice of appeal with IRAC" (Exhibit D1).

However, Don Walters states that they have no objection to participating in the appeal at this stage if the Commission feels there is adequate grounds to consider the appeal.

3. Reasons for Decision

As early as June of 1996 a real estate agent placed a sign on the property in question advertising it for sale. Appellant Sesko admitted that this was his first notice that there would be an attempt made to subdivide the property. Then on July 11th Departmental representatives went to the site to dig test pits. Appellant Moore telephoned Mr. Carragher after the test pits had been dug, but on the same day, to advise him that the test pit had been dug on his, Mr. Moore's property. Mr. Carragher returned late that afternoon to dig another test pit. At that time Mr. Sesko attended at the site and talked to Mr. Carragher about what was going on.

Then in August the land was surveyed. Only then did Mr. Moore telephone the Department to ask what he should do to appeal a decision approving a subdivision. This conversation was followed by a letter dated August 16, 1996 from Ken Sesko apparently delivered to the Department of Provincial Affairs and Attorney General on August 15, 1996 stating:

Please accept this letter as a formal request that we be notified of the approval of the severance of the lot of Leith Stretch located in front of our property (Lot 8) of the Leith and Heather Stretch Subdivision in Long Creek.

A similar letter was signed by Gary Moore and apparently delivered on the same date. The following day, Friday, was a Civic holiday. On the first business day after the letter was delivered - on August 19, 1996 - John Pickard responded to it by telephoning the Appellants and advising them that in fact the 21 day appeal period from preliminary approval had expired on August 15, 1996. He advised them to file their Notice of Appeal right away if they still wanted to and the Commission would have to decide if it could hear the appeal.

In these circumstances the Commission finds that the responsibility for the Appellants failure to file their Notice of Appeal within the required time period rests with the Appellants. First of all, they knew by June that a subdivision was pending yet made no inquiries about their rights to contest this until August. Even the activity of digging a test pit in July did not result in the Appellants taking any action to protect themselves.

As for the Appellants attempts to blame others for the Appellants failure to comprehend the complexities of the Planning Act, the Commission has some sympathy but finds no real merit to these arguments either.

The fundamental complaint of the Appellants - that there should be some public notice of decisions (preliminary or final) that are appealable - has merit and has been raised by many other Appellants. We agree that the failure of the legislation to require any public notification of such decisions creates a significant barrier to those with opposing interests who may wish to be heard.

However, the establishment of such a requirement in the legislation requires an amendment to the Act and this can only be accomplished by the Legislature of the Province. Such complaints, therefore, need to be raised with Members of the Legislative Assembly, not with members of this Commission. Given existing law, the failure of the Minister to notify the Appellants or give public notice is therefore not a valid ground for appeal.

The other complaint is that various people misled the Appellants about the law, either by making no distinction as to "preliminary" v. "final" approval or by advising them that they could wait for "final" approval before appealing. The Commission finds that the evidence does not support these allegations. The law is complex and the Appellants clearly have difficulty understanding it. However, this does not mean that others are to blame.

Whether or not a matter must be appealed after "preliminary" rather than "final" approval is not something that can be determined without specific knowledge of the particular case. Yet the main problem is that the Appellants appear convinced that they could have been advised by anyone they encountered, regardless of whether or not that person knew any specific details of the case, as to whether they should file an appeal upon "preliminary", as opposed to "final", approval. However, a review of the legislation indicates that this is not the case.

The relevant section of the Planning Act is section 28. The relevant portions of S.28 are as follows:

Section 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.

(2) ...

(3) ..

(4)No appeal lies from a decision of the council or the Minister, as the case may be, respecting the final approval of a subdivision where the matters that are the subject of the proposed appeal could have been heard and decided at the stage of preliminary approval.

Each and every situation is different and whether or not the qualifier set out in subsection (4) of Section 28 applies to any case requires some analysis of the appeal and reasons therefore. The Commission accepts that when the Appellants generally inquired about appeals they were told that appeals had to be filed within 21 days "of the decision" or "of the approval" without an analysis being made of whether or not subsection (4) applied.

On August 14, 1996 - when Mr. Sesko and his wife attended at the office of the Commission - they were given a copy of the appeal provisions under the Planning Act.

However, it appears from the evidence that the Appellants did not carefully read the appeal provisions provided to them. They also did not seek any advice about the specific meaning of the various provisions. Their "guess" during the hearing as to the meaning of ss. 28.(4) substantiates this. If they had read the provisions carefully they would have seen the distinction between "preliminary" and "final" approval and then pursued their appeal, or at least made inquiries, accordingly.

Even the Commission could not say at this point in time whether or not what the Appellants wish to appeal can only be appealed within 21 days of preliminary approval. We have not heard evidence on the merits of the case, only on the preliminary issue of whether or not they have filed within the required time period to have the preliminary approval reviewed. They have not.

As to the issue of whether the appeal was filed within the prescribed time limit, 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.

Applying the formula for the computation of time, the period for filing a notice of appeal starts on July 26, 1996. Therefore as the Notices of Appeal were filed on August 19, 1996, the Commission finds that the appeals were filed on the 25th day.

This decision, of course, relates only to the loss of those appeal rights referred to in subsection (4) of Section 28, that is, with respect to any matter that "could have been heard and decided at the stage of preliminary approval". The Commission makes no determination herein as to whether or not any matters related to this subdivision approval are appealable after final approval is granted.

4. Disposition

For the reasons given, the Commission finds that it is without jurisdiction to hear these appeals.

IN THE MATTER of an appeal by Gary Moore against a decision by the Minister of Provincial Affairs and Attorney General.

- and -

IN THE MATTER of an appeal by Ken Sesko against a decision of the Minister of Provincial Affairs and Attorney General.

Order

WHEREAS Gary Moore and Ken Sesko, the Appellants, each filed a Notice of Appeal with the Commission on August 19, 1996;

AND WHEREAS the Commission held a hearing into the preliminary issue of jurisdiction in Charlottetown on September 10, 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. The Commission is without jurisdiction to hear these appeals.

DATED at Charlottetown, Prince Edward Island, this 18th day of November, 1996.

BY THE COMMISSION:

Linda Webber, Chair

James Nicholson, Commissioner

Clayton Bulpitt, 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.