Docket LA97010
Order LA97-10
BEFORE THE COMMISSION
on Tuesday, the 26th day of August, 1997.
Linda Webber, Chair
Anne McPhee, Commissioner
Debbie MacLellan, Commissioner
Order
Contents
1. Introduction
2. Discussion
3. Findings
4. Disposition
Appearances & Witnesses
Written submissions were submitted by:
1. For the Appellant
Witness:
Gary Paynter
2. For the City of Charlottetown
Counsel:
David Hooley
3. For the Developer
Witnesses:
Carl Connick
Marilyn White
Reasons for Order
1. Introduction
This is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8, by Gary Paynter (the Appellant) against a decision by the City of Charlottetown (the City) to approve a building permit for 195 Kensington Road. The permit was approved on February 20, 1997. The property is owned by Tiny Tot Daycare Inc. (operated by Carl Connick and Marilyn White).
The Appellant filed a notice of appeal with the Commission on June 3, 1997.
2. DiscussionUpon receipt of the Notice of Appeal, Commission staff notified the Appellant that the time for filing an appeal may have expired as it would appear the notice was 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 appeal.
The Appellant submitted a response to this matter on June 17, 1997. David Hooley, on behalf of the City, submitted a response on August 5, 1997 and Carl Connick and Marilyn White submitted a response on June 23, 1997.
3. FindingsThe Commission has considered the submissions filed by all parties in this matter and has decided the following:
Section 28 of the Planning Act provides the right of appeal to the Commission and prescribes a 21 day appeal period. Section 28.(1) of the Act states:
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. (emphasis added)
In accordance with Section 23(5) of the Interpretation Act the appeal period started on February 21, 1997, the day after the date the permit was approved. Pursuant to Section 23(5) of the Interpretation Act the computation of time is defined:
23(5)
In the calculation of time not expressed in clear days, or other period of time not referred to in subsection (4), the first day shall be excluded and the last day included.
The Notice of Appeal was filed by fax at the office of the Commission on June 3, 1997. Applying the formula for the computation of time under Section 23(5) of the Interpretation Act, the Commission finds that the appeal was filed on the 103rd day.
The Appellant has admitted to filing his appeal 103 days after the date the permit was approved. He presents no justification for this delay.
The Commission therefore finds that it has no justification to hear this appeal.
4. Disposition
The Commission hereby declares that it does not have jurisdiction to hear the appeal.
IN THE MATTER of an appeal by Gary Paynter against a decision by the City of Charlottetown, dated February 20, 1997.
Order
WHEREAS Gary Paynter has appealed a decision made by the City of Charlottetown on February 20, 1997;
AND WHEREAS the Commission has considered the submissions filed by all parties in this matter;
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 26th day of August, 1997.
BY THE COMMISSION:
Linda Webber, Chair
Anne McPhee, 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.