Order LA99-14 - LA99012 - Planning Appeal - Kevin Murphy v. Community Services & Attorney General (Dec. 23/99)

Docket LA99012
Order LA99-14

IN THE MATTER of an appeal filed by Kevin Murphy against a decision made by the Minister of Community Services and Attorney General, dated May 25, 1999.

BEFORE THE COMMISSION

on Thursday, the 23rd day of December, 1999.

Wayne D. Cheverie, Q.C., Chair
Norman Gallant, Commissioner

Order

Contents

Written Submissions

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition
Order

Written Submissions

1. For Appellant – Kevin Murphy

Legal Counsel:
Shawn A. Murphy, Q.C.

2.    For the Respondent – Minister of Community Services and Attorney General

Represented by:
Don Walters

3.    For the Developer – Catherine McKinnon

Legal Counsel:
Kevin Kiley

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 Kevin Murphy (the Appellant) against a decision by the Minister of Community Services and Attorney General (the Respondent) to approve building permit number PBF-133-99. The permit was issued on May 25, 1999 to Catherine McKinnon (the Developer) to construct an entertainment barn on property number 91868, located in Stanley Bridge.

The Appellant filed a Notice of Appeal with the Island Regulatory and Appeals Commission (the Commission) on June 15, 1999. Following this and prior to the commencement of a hearing, both the Respondent and Developer raised preliminary matters.

The Commission received written submissions from all parties with respect to the issues raised, and the decision which follows relates only to those matters.

2. Discussion

In a letter to the Commission dated August 24, 1999, Kevin Kiley on behalf of the Developer raised a number of preliminary matters including the issue that the appeal was filed beyond the 21-day appeal period as prescribed by subsection 28(1) of the Planning Act, and therefore the Commission was without jurisdiction to hear this appeal. In a letter to the Commission dated August 24, 1999, Don Walters on behalf of the Respondent also raised a number of preliminary matters.

In the chain of events regarding the Respondent's decision to issue building permit number PBF-133-99, two additional appeals were filed by separate individuals – George Schurman (Schurman) and Rick Roberts (Roberts). Both the Developer and the Respondent also raised preliminary matters pertaining to those appeals.

The Commission held hearings on these issues involving the Schurman and Roberts appeals and rendered decisions LA99-06 and LA99-07. In both cases the Commission dismissed the preliminary matters and decided to proceed with the substantive matters on a date to be set.

3. Findings

In the present case, the Commission has considered the written submissions as filed by the parties. This decision deals with one issue only - whether the appeal was filed within the time period of 21 days as prescribed by subsection 28(1) of the Planning Act.

Under the Planning Act, the Commission's appellate jurisdiction is set out in subsection 28(1):
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.

The issue being contested in the present case is whether the Notice of Appeal was filed within the 21-day time period.

The Developer's argument focuses on the fact that the Notice of Appeal which was sent to the Commission by way of fax transmission was stamped by the Commission as being received on June 16, 1999 which is 22 days after the Minister's decision.

The Notice of Appeal contains the following information at the top of the document - "06/15/1999 at 16:46 from 902-368-3806 by Murphy Investments". The Commission interprets this to mean that the document was faxed from Murphy Investments, a company owned by the Appellant, on June 15, 1999 at 4:46 P.M.

The Developer's contention is that since the Commission's office was closed at 4:00 P.M., the Notice of Appeal was not filed on time. The Developer relies, in part, on a decision rendered by the Ontario Municipal Board in North Easthorpe (Township) v. Wilmot (Township), [1993] O.M.B.D. No. 625.

Having considered the Ontario Municipal Board case, the Commission believes that many of the facts contained in that case differ from those which are now set out in the case before us. For example, there are no rules here which require that an appeal must be filed within business hours of the Commission.

On the contrary, the Commission is of the opinion that it must take a fair, large and liberal interpretation when considering the provisions of subsection 28(1) of the Planning Act, and believes such an interpretation would allow an appeal if it was received by midnight on the twenty-first day.

For these reasons, the Commission has decided that the appeal was filed in compliance with subsection 28(1) of the Planning Act, and the Commission will proceed to hear the substantive matters of this appeal on January 12, 2000 which is the date fixed for the appeal hearing.

Given that the remaining preliminary matters herein essentially have already been dealt with in Order #LA99-06 and Order #LA99-07, the Commission will entertain argument on these on January 12, 2000 if the Developer and the Respondent still wish to pursue them. In this regard, the Developer and the Respondent must advise the Commission and the other parties of their intent before January 12, 2000.

4. Disposition

An Order will therefore be issued finding that the appeal was filed within the prescribed twenty-one day appeal period.

Order

WHEREAS Kevin Murphy has filed an appeal against a decision of the Minister of Community Services and Attorney General, dated May 25, 1999;

AND WHEREAS the Commission received written submissions from all parties on preliminary matters;

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 appeal was filed in compliance with the time limitations as prescribed by subsection 28(1) of the Planning Act.

2.    The Commission has the jurisdiction to hear this appeal.

DATED at Charlottetown, Prince Edward Island, this 23rd day of December, 1999.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair
Norman Gallant, 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.