Docket: LA99036
Order LA00-06

IN THE MATTER of an appeal by Chester Campbell against a decision made by the Town of Stratford, dated October 18, 1999.

BEFORE THE COMMISSION

on Wednesday, the 17th day of May, 2000.

Ginger Breedon, Vice-Chair
Arthur Hudson, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant

Counsel:
Barbara Stevenson, Q.C.

Witness:
Chester Campbell

2.    For the Town of Stratford

Counsel:
Alan Cheverie
Jacqueline O'Keefe

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. P-8, by Chester Campbell (the Appellant) against a decision by the Town of Stratford (the Respondent) to deny an application to subdivide Parcel Number 329201, located in Stratford.

The Appellant filed a Notice of Appeal with the Island Regulatory and Appeals Commission (the Commission) on November 9, 1999.  According to the Notice of Appeal, the Respondent made a decision to deny the application on October 18, 1999.

At the request of the Appellant and with the agreement of the Respondent the matter was held in abeyance until the new year.  On January 28, 2000, at the request of the parties, Commission staff met with the parties in an attempt to  seek a resolution to the matter.  Despite this attempt, a resolution was not achieved and the parties agreed to have the matter heard by the Commission.

Prior to the commencement of the hearing, the Commission identified a preliminary matter related to the filing of the Notice of Appeal.  On March 1, 2000, Commission staff notified the parties that the time for filing an appeal may have expired as it would appear the Notice of Appeal was filed beyond the 21 day appeal period pursuant to the provisions of Section 28 of the Act and, as a result, the Commission may not have the jurisdiction to hear the appeal. 

On March 28, 2000, legal counsel for the Appellant filed case law relative to the question of jurisdiction and filed argument on this matter on April 3, 2000.

The Commission conducted a hearing to receive further argument from the parties on the preliminary matter of jurisdiction. The hearing was held on April 4, 2000.

The Appellant and Respondent submitted additional comments relative to this preliminary matter on April 17, 2000 and April 18, 2000 respectively.  Prior to a decision being rendered, the parties requested that the Commission hold the appeal in abeyance as they attempted to again resolve the matter.  On May 8, 2000, the Respondent notified the Commission that a resolution could not be achieved and requested that the Commission proceed to render its decision.

2.   Discussion
The Appellant

The Appellant takes the position that the Commission does have jurisdiction to hear this appeal.

The Appellant submits that when Section 28 of the Act is examined with respect to “a decision of Council”, the date of the decision is the date the decision was communicated to the Appellant – that being October 21, 1999 (Exhibit A1) and not the date when the decision was actually made – at the council meeting on October 18, 2000.  The Appellant relied in part on the decisions by the New Brunswick Court of Appeal in Re Hache and Minister of Municipal Affairs (1968) 2 D.L.R. (3d) 186 (N.B.C.A.) and the Ontario High Court of Justice in Re Powell and Minister of Justice (1980) 31 O.R. (2d) 111 (H.C.J.).

The Appellant further submits that the information relative to filing a Notice of Appeal contained in Exhibit A1 - ”If you are dissatisfied by the decision of Council you have the right of an appeal to the Island Regulatory and Appeals Commission within twenty-one days upon receipt of this notice”, is misleading and results in a denial of natural justice.  The Appellant relies on Re Loblaws Ltd. and Ludlow Investments Ltd. (1975) 7 O.R. (2d) 665 (Ont. C.A.).

With respect to whether the Appellant had sufficient notice of the meeting held by Council on October 18, 1999, the Appellant submits that the newspaper advertisement was deficient in that it gave no indication that the subject application would be dealt with at this meeting.

The Appellant submits that in the alternative, if the Commission should find that the appeal period begins on October 18, 1999 - the date the decision was made, then there are unique circumstances which the Commission must consider which will allow the Commission to hear this appeal.  The Appellant contends that the wording contained in the letter dated October 21, 1999, which notified the Appellant of the Respondent's decision, is misleading and the actions of the Appellant to file the Notice of Appeal beyond the 21 day period were as a result of an “officially induced error”.

For these reasons, the Appellant requests that the Commission hear this appeal.
The Respondent

The Respondent takes the position that the Commission is without jurisdiction to hear this appeal.  The Respondent submits the appeal period begins to run on the date of the decision and not the date of notification.  The Respondent also notes that the Act does not give the Commission any discretion to vary the time from the clearly established appeal period.

As to the Appellant's contention that there are unique circumstances and that the Appellant's actions were created by an officially induced error, the Respondent submits that this is a defense against a charge of violating a strict liability offence.  In this instance there is no allegation of an offence but merely a failure to comply with a limitation period.  The Respondent contends that  what the Appellant is requesting is effectively asking the Commission to create new law – which the Commission has no authority.

As to the issue of denial of natural justice, the Respondent submits that the fact that the letter contained the wrong date for filing an appeal results in the possible loss of four days; however, this does not result in a denial of natural justice.

The Respondent urges the Commission to consider these matters when rendering its decision on the issue of jurisdiction.

3.   Findings

The Commission has considered the submissions of the parties as well as reviewed the applicable case law.

As the Commission has often stated, it is a creature of statute with the powers and jurisdiction prescribed by statute. In this case, the Commission's powers are derived from the Planning Act and the Island Regulatory and Appeals Commission Act.

The Commission's jurisdiction in appeals under the Planning Act is set out in subsection 28(1), which states:

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)

The question before the Commission in the preliminary matter is whether the Appellant's Notice of Appeal was filed within the appropriate time period as established under the provisions of subsection 28(1) of the Planning Act and, thereby, subject to the Commission's jurisdiction.

The facts of the case are not in dispute and are as follows:

  •      October 18, 1999 – at a meeting of Town Council a decision was made to deny the Appellant's application to subdivide his property (Exhibit R5).

  •      October 21, 1999 – a letter was sent by Town staff to inform the Appellant of Council's decision (Exhibit A1).

  •      November 9, 1999 – a Notice of Appeal was filed by the Appellant with the Commission (Exhibit A3).

The Commission is of the opinion that the facts of this case are quite distinguishable from those in the cases relied upon by the Appellant.  Here we have a decision of Council which was made at a public meeting on October 18, 1999.  In addition, according to the minutes of this meeting (Exhibit R5), Council “pronounced or delivered” its decision to the public at this meeting.

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

Having considered the facts of this case and the statutory provisions of the Act, it is the opinion of the Commission that the twenty-one day period for filing a Notice of Appeal begins to run on the day after Council made its decision at a public meeting and not when the decision was conveyed to the Appellant.

The Commission has no inherent authority to make law or, in this case, to extend the time period for filing a Notice of Appeal.  In this case, for the Commission to find that the appeal period begins to run on the date of notification would be tantamount to creating new law, for which the Commission has no legal authority.

The Commission concurs that the October 21, 1999 letter from the Town official to Mr. Campbell unquestionably contained wrong information regarding the time period for filing a Notice of Appeal.  The Commission also accepts that Mr. Campbell was misled by this information and sympathizes with the situation this has created for him.  However, the Commission does not believe it has a legal basis for addressing this error by the Town official, and is bound by the governing statute in this case, the Planning Act.  Therefore, notwithstanding the misleading information in the October 21, 1999 letter, the final day for filing a Notice of Appeal in this case was November 8, 1999.

As a result, the Commission finds that it is without jurisdiction to hear this appeal.

4.  Disposition

 An Order finding that the Commission is without jurisdiction to hear this appeal will be issued.
 

Order

WHEREAS Chester Campbell (the Appellant) has appealed a decision made by the Town of Stratford dated October 18, 1999;

AND WHEREAS the Commission received written submissions and heard arguments on a preliminary matter at a public hearing conducted after due public notice in Charlottetown on April 4, 2000;

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 17th day of May, 2000.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair

Arthur Hudson, 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.