Order LW01-01 - Ed Dykerman v. Lieutenant Governor in Council (Aug. 15, 2001)

Docket: LW01001
Order LW01-01

IN THE MATTER of an appeal by Ed Dykerman, on behalf of concerned residents in the community of Brookfield, against an Order of the Lieutenant Governor in Council, dated February 20, 2001.

BEFORE THE COMMISSION

on Wednesday, the 15th day of August, 2001.

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Kathy Kennedy, Commissioner

Reasons for Order

WHEREAS on March 12, 2001, the Commission received a Notice of Appeal filed by Ed Dykerman, on behalf of concerned residents in the community of Brookfield, (the Appellant) against Order in Council number EC2001-108 of the Lieutenant Governor in Council (the Respondent), said Order in Council stating that pursuant to subclause 4(b)(ii) and clause 20(1)(c) of the Roads Act Highway Access Regulations (EC580/95) Council determined that a change of use of an access to Route 2 at Brookfield from agricultural to industrial is in the best interest of the province;

AND WHEREAS the Commission's jurisdiction in appeals pursuant to the Roads Act, R.S.P.E.I. 1988, Cap. R-15 is set out in subsection 12.(1) of the Roads Act Highway Access Regulations (EC580/95), which states:

12.(1) Where the Minister has discretion to issue an entrance way permit pursuant to these regulations, a decision of the Minister may be appealed to the Island Regulatory and Appeals Commission, by the applicant. (Emphasis added)

AND WHEREAS following receipt of the appeal, the Commission invited written submissions from the Appellant and the Respondent on the issue of whether the Commission has the jurisdiction to hear this appeal;

AND WHEREAS detailed written submissions were received from the Appellant and the Respondent;

AND WHEREAS the Appellant's submission stated, among other points, that the Commission had the jurisdiction to hear the appeal pursuant to the Roads Act Highway Access Regulations, the Planning Act, R.S.P.E.I. 1988, Cap. P-8 and under the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988, Cap. I-11;

AND WHEREAS the Respondent's submission stated, among other points, that the Commission does not have the jurisdiction to consider an appeal of an Order in Council;

AND WHEREAS the Commission is a creation of statute and only has the authority expressly conferred upon it by the Legislature;

AND WHEREAS the Legislature has not conferred upon the Commission the power to review or hear an appeal of an Order of the Lieutenant Governor in Council;

AND WHEREAS after careful review of all the submissions advanced by the Appellant and the Respondent, together with the applicable law, the Commission has concluded that it does not have jurisdiction to hear the present appeal;
ACCORDINGLY, IT IS HEREBY ORDERED that the Commission is without jurisdiction to hear this appeal.
DATED at Charlottetown, Prince Edward Island, this 15th day of August, 2001.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair

Ginger Breedon, Vice-Chair

Kathy Kennedy, 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.