Docket LW94001
Order LW95-01
BEFORE THE COMMISSION
on Thursday, the 27th day of April, 1995.
Linda Webber, Chair
Debbie MacLellan, Commissioner
Clayton Bulpitt, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion & Findings
3. Disposition
Order
Appearances & Witnesses
1. For the Appellant
Alex Calder The Appellant
Marie Calder In support of the Appellant
2. For Department
Mark Gallant Legal Counsel
Kent Smith Traffic Operations Technician
Reasons for Order
1. Introduction
This is an appeal under the Roads Act, R.S.P.E.I. 1988, Cap. R-15, by Alex Calder (the Appellant).
On November 8, 1994 the Appellant Alex Calder filed with the Department of Transportation and Public Works an Application for an Entrance Way Permit for Property No. 219139 on Route 1, the Trans Canada Highway. The application stated that access to property was sought for a single family dwelling or cottage.
The Department responded by letter dated November 18, 1994 turning down the application, citing Section "4b" of the Roads Act Arterial Highway Regulations.
Mr. Calder filed an appeal with the Commission by letter dated November 28, 1994.
By letter dated January 12, 1995 the Department notified the Commission that in its opinion "Section 4(b) of the Roads Act Arterial Highway Regulations is not subject to the appeal process."
The parties were notified that this preliminary objection would be dealt with at the beginning of the hearing of the appeal.
2. Discussion & Findings
The position taken on behalf of the Minister is as follows: An appeal to the Island Regulatory and Appeals Commission only exists where the Minister has the legal right to issue an entrance way permit and such legal right only exists in connection with s.16 of the Roads Act, Arterial Highway Access Regulations. Since the Appellant was turned down pursuant to provisions set out in s. 4 of the Regulations, not pursuant to provisions set out in s. 16, there is no appeal to the Commission. Anyone dissatisfied with such a decision would have to seek a remedy through the Courts.
The Commission has reviewed the Act and Regulations, and the arguments of the Respondent. The Commission points out that the normal rules for construction of statutes state that sections can't be read in isolation from one another. The general intent of a provision is to some extent determined by the context within which that provision is found - the other sections of the act and regulations. The textbook Craies on Statute Law (7th edition) London, Sweet & Maxwell (1971) provides some comment on this matter at p. 100:
In Colquhoun v. Brooks, Lord Herschell said: "It is beyond dispute, too, that we are entitled, and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act." And Lord Davey in Canada Sugar Refining Co. v. R., said: "Every clause of a statute should be construed with references to the context and other clauses in the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter."
Insofar as regulations all concerned, Driedger on the Construction of Statutes (3rd edition), Butterworths, (1994), states at p. 246:
Regulations. Where the provision to be interpreted appears in a regulation, it is read in the context of both the regulation and the enabling Act as a whole.
As well, we note that the Interpretation Act, RSPEI 1988, Cap I-8, provides that every enactment should be given such "fair, large and liberal construction and interpretation as best ensures the attainment of its objects" (s.9).
The position of the Minister appears to discourage any fair and large interpretation of the Act and Regulations and to suggest that one must read one section in isolation from all others.
The appeal provision in question reads as follows:
12. Where the Minister may issue an entrance way permit pursuant to these regulations, any decision of the Minister may be appealed to the Island Regulatory and Appeals Commission, by the applicant.
This section does not refer to an appeal from "a decision made pursuant to s. 16" as suggested by the Minister's representative. Rather, the section refers to "these regulations" and "any decision."
The Minister suggests that Section 4 -- used to deny the Appellant his permit -- is a precondition to viewing s. 16. We point out that the proper method of analysis is not clear and an argument could be made that one first must determine if an applicant fits within s. 16. Then, if he does, a further review is required under Section 4.
A review of the Arterial Highway Access Regulations shows that they consist of definitions, qualifications, preconditions and various specific factors to be considered. Section 16 itself describes circumstances within which the Minister may issue an entrance way permit, and also circumstances in which no entrance way permit may be issued. Accordingly, even under s. 16, if the Minister determines that the circumstances exist such that no permit shall be issued, then -- using the Minister's argument -- there would be no right of appeal, even though we are still dealing with Section 16.
Finally, we note that Section 4 itself is not purely the negative "no permit may be issued" section argued by the Minister. Subsections (c) and (d) of that Section outline circumstances in which a permit will be allowed, and so even that Section meets the Minister's requirement of being one connected to the s. 12 precondition of "where the Minister may issue an entrance way permit...."
Overall the argument of the Minister fails. The Regulations must be read as a whole and we can see no attempt by the Legislature or the Lieutenant Governor in Council to unusually restrict the right of appeal claimed by the Appellant.
3. Disposition
The preliminary objection is hereby dismissed.
IN THE MATTER of an appeal by Alex Calder against a decision by the Department of Transportation & Public Works dated November 18, 1994
Order
WHEREAS
Alex Calder (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission) in written notice dated November 28, 1994, against a decision of the Department of Transportation and Public Works (the Department);AND WHEREAS
the Commission heard the appeal at public hearings conducted in Charlottetown on April 10, 1995 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 Roads Act IT IS ORDERED THAT1. The preliminary objection is hereby dismissed.
DATED
at Charlottetown, Prince Edward Island, this 27th day of April, 1995.BY THE COMMISSION:
Linda Webber, Chair
Debbie MacLellan, Commissioner
Clayton Bulpitt, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
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:
(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.