Docket: LA00113
IN THE MATTER of an appeal by Lennis MacFadyen against a decision made by the Minister of Community and Cultural Affairs, dated July 19, 2000.
Order LA00-11BEFORE THE COMMISSION
on Tuesday, the 31st day of October, 2000.
Wayne D. Cheverie, Q.C. Chair
Maurice Rodgerson, Commissioner
James Carragher, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses 1. For the AppellantsCounsel:
John W. Hennessey
Jacqueline O'KeefeWitness:
Lennis MacFadyen2. For the Respondent
Counsel:
Sherry GillisWitnesses:
Donald Walters
David Hume3. For the Developers
Counsel:
Steven L. Woodman
Reasons for Order
1. IntroductionThis is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. P-8, by Lennis MacFadyen (the Appellant) against the decision of the Minister of Community and Cultural Affairs (the Respondent) to grant a variance pursuant to Section 9 of the Planning Act Regulations (the Regulations) to Shawn and Linda Wise (the Developers).
The Developers own a parcel of land, Provincial Property Number 202929, Lot 3 located on the south side of a subdivision road in the Community of New Dominion (the subject property).
The Community of New Dominion is a community without an official plan, and therefore the Respondent has the responsibility for planning and development of land there under the authority of the Act and the Regulations.
On February 11, 1999, the Developers submitted an Application for Development Approval; proposing to build a summer cottage on the subject property (Exhibit R2). On March 8, 1999, the Respondent issued building permit number C-031-99 to the Developers (Exhibit R18).
On July 18, 2000 the Developers wrote the Respondent requesting a variance for the subject property (Exhibit R16). This request for a variance is to allow the Developers' existing cottage to remain in its present location at eleven feet from the western boundary of parcel # 201889, presently owned by the Appellant. On July 19, 2000 the Respondent advised the Developers that their request for a variance had been granted (Exhibit R17).
The Appellant forwarded a Notice of Appeal dated August 4, 2000 (Exhibit A1) to the Island Regulatory and Appeals Commission (the Commission) requesting that the Respondent's decision to grant the variance be set aside.
The Commission heard the appeal on October 12 and 25, 2000 in Charlottetown. During the first day of the hearing the Appellant raised an issue as to whether the authority to grant the variance was properly delegated.
The Respondent filed a submission, dated October 13, 2000, which was received by the Commission on October 17, 2000 (Exhibit R21). The Appellant filed a submission in response dated October 20, 2000 (Exhibit A3). The Respondent then filed a further submission and the affidavit of Mr. Donald Walters; both documents dated October 23, 2000 (Exhibit R22). A second hearing day was then scheduled and held on October 25, 2000, concerning the issue of jurisdiction. Counsel for the Developers consented to the hearing proceeding in his absence, given that the sole issue at the second hearing day was jurisdiction.
2. Discussion
The Appellant
The Appellant acknowledges that the Minister has the authority, under Section 6, paragraph (h) of the Act, to delegate the power to grant a variance to an employee of the Respondent. The Appellant further acknowledges that subsection 21(1) of the Interpretation Act, R.S.P.E.I., 1988, Cap. I-8 gives a Deputy Minister the authority to delegate the power to grant a variance.
The Appellant submits the following points in argument:
In this case there was no delegation by the Minister or Deputy Minister of the power to grant a variance under Section 9 of the Regulations to Mr. Donald Walters, the Respondent's Chief Development Officer.
The letters from the Respondent dated August 8, 1995 and June 21, 1999 (Exhibit R21) specifically delegated various matters to certain persons. There is no express or implied authority to grant a variance in these letters. Authorization to grant variances does not fall under the area of Building and Development Permits noted in these letters.
Building and development permits represent an administrative process whereby the Respondent is exercising a technical function. The discretion under Section 9 of the Regulations is a higher and different function than administration. If the Respondent intended a delegation of this function, the legislation, or an authorizing letter, should have made this clear.
While accepting what Mr. Walters has sworn to in his October 23, 2000 affidavit (Exhibit R22), the facts sworn to in the affidavit do not amount to ministerial delegation. Rather, the facts establish that a task was assigned to Mr. Walters rather than the authority envisioned under Section 9 of the Regulations. Delegation of authority is a broader concept than the assignment of a task.
The Appellant submits that the decision to grant a variance was made without lawful authority, and therefore no variance was granted in this matter.
The Respondent
The Respondent submits the following points in argument:
The intent of the Respondent's August 8, 1995 and June 21, 1999 letters (Exhibit R21) was to grant to Mr. Walters the authority to deal with the development permit process all the way up to, and including, the granting of a development permit. To accomplish this objective would require the authority to grant variances under Section 9 of the Regulations.
The conversation between Ronald H. MacMillan, Deputy Minister, and Mr. Walters, as evidenced by Mr. Walters' affidavit of October 23, 2000 (Exhibit R22), establishes that the Deputy Minister delegated the authority to issue a variance, in this matter, to Mr. Walters.
The granting of a variance under Section 9 of the Regulations is within the normal course of duties of the Chief Development Officer.
The Respondent submits that the decision to issue a variance in this case was lawful, that the Commission has jurisdiction to hear this case on its merits, and that the Appeal should be dismissed.
The Developers
The Developers agree with the position taken by the Respondent.
3. Findings
Before the Commission can proceed to determine this case on its merits, it must first determine whether or not Mr. Walters was granted the ministerial authority, pursuant to Section 6, paragraph (h) of the Act and Section 9 of the Regulations, to grant a variance. Simply put, if the Commission finds that Mr. Walters was not granted such authority, the Respondent has not made a decision on this matter. If no decision was made, the Commission has no jurisdiction to hear this appeal. This is so because the Commission's authority and jurisdiction is rooted in subsection 28(1) of the Act as follows:
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)
If on the other hand the Commission finds that ministerial authority was lawfully granted to Mr. Walters, the Commission can then proceed to determine this matter on its merits.
Section 6, paragraphs (a), (b), c) and (h) of the Act read as follows:
6. The Minister shall
(a) advise the Lieutenant Governor in Council on provincial land use and development policy;
(b) perform the functions conferred on him by this Act and the regulations;
(c) generally, administer and enforce this Act and the regulations,and may. . .
(h) delegate any of his functions under this Act or the regulations.
Subsections (1) and (2) of Section 9 of the Regulations read as follows:
9 (1) The Minister may, for special cause, authorize such minor variance from the provisions of these regulations as in his opinion is desirable and not inconsistent with the general intent and purpose of these regulations.
(2) Applicants seeking a variance from the provisions of these regulations shall clearly document the grounds for special cause for the consideration of the Minister.
The Commission is called upon to decide whether the Minister's letters of August 8, 1995 and June 21, 1999 amount to an express delegation of authority to authorize Mr. Walters to issue variances under Section 9 of the Regulations.
The Commission notes that Section 9 of the Regulations falls under Part III Applications and General Provisions, rather than Part IV Building Regulations. This suggests that Section 9 is intended to apply to the Regulations as a whole, rather than only a designated part of the Regulations.
Section 9 is not the only variance provision in the Regulations. Section 45 is a variance provision falling under Part V Subdivision Regulations. Subsection 74(5) is a variance provision falling under Part VIII Summer Cottage Subdivision. Both these variance provisions fall under specific portions of the Regulations, and apply to specific circumstances; namely, a cluster subdivision which is the subject of a subdivision agreement. Under Section 45, conditions for approval are provided for a side and rear yard setback variance; namely if the proposed sewage disposal and water supply systems for the subdivision meet the requirements of the Environmental Protection Act, R.S.P.E.I. 1988, Cap. E-9 and provided such a variance is approved by the Fire Marshall. Under subsection 74(5) conditions for approval are provided for a variation of lot sizes, setbacks and side yards specified in these regulations if the proposed water and sewage facilities meet the requirements of the Department of Technology and Environment.
While the variance provisions contained in Section 45 and subsection 74(5) may very well represent an administrative function which is integral to the processing of applications for subdivision, the Commission finds that the same reasoning does not apply concerning variances under Section 9 of the Regulations. Unlike Section 45 and subsection 74(5), Section 9 does not provide specific conditions for approval, such as approval under the Environmental Protection Act or the approval of the Fire Marshall. Rather, Section 9 calls upon the Minister to exercise her discretion based on the general intent and purpose of the Regulations.
Robert W. Macaulay and James L.H. Sprague, the authors of Volume 1 of Practice and Procedure Before Administrative Tribunals (Toronto: Carswell Thomson Professional Publishing, 1997) state the following at page 37 of Chapter 5:
Frequently powers which are viewed as being administrative in nature are expected to be capable of exercise by someone other than the named official. Powers to make legislation is generally thought to be restricted to the named recipient of the power. Judicial and quasi-judicial powers are usually incapable of subdelegation without express authority. Other discretionary powers are more likely to be restricted to the named recipient but the other factors noted above may lead to a different conclusion in a particular case.
The Commission finds that a Section 9 variance requires the Minister to exercise a quasi-judicial function, rather than an administrative one. While the Minister may certainly delegate the power to issue a Section 9 variance, such delegation or authorization must be crystal clear. Without such an express authorization, the Respondent's staff has no authority to exercise the quasi-judicial function envisioned under Section 9 of the Regulations. The Commission finds that the Minister's letters of August 8, 1995 and June 21, 1999 does not grant Mr. Walters the ministerial authority to issue a Section 9 variance.
However, this is not the end of the matter. The Respondent urges the Commission to find that the conversation between Deputy Minister Ronald H. MacMillan, Q.C. and Mr. Walters was in fact a delegation of authority to grant a variance in the present case.
The Commission notes paragraph two of Mr. Walters' October 23, 2000 affidavit (Exhibit R22):
On June 28, 2000, I met with Deputy Minister of Community and Cultural affairs, Ronald H. MacMillan, to discuss the Wise and MacFadyen case, which is the matter of this present appeal. At that time we discussed the issue that Mr. Wise might apply for a variance under Section 9 of the Planning Act Regulations. Mr. MacMillan advised me that I could proceed with the issuing of a variance if, after analysis of the situation, I thought that a variance was warranted in the situation. Specifically, it is my opinion that Mr. MacMillan delegated power to me under Section 9(1) of the Planning Act Regulations.
The Commission notes that subsection 21(1) of the Interpretation Act R.S.P.E.I. 1988, Cap. I-8 provides that words directing or empowering a Minister of the Crown to do something include the Minister's deputy. Clearly, Mr. MacMillan, as Deputy Minister, has the statutory authority to grant a Section 9 variance.
The Commission finds that, while it is the honest and sincere belief of Mr. Walters that he was authorized by the Minister to grant a Section 9 variance, whether by an authorization letter from the Minister, or a conversation with the Deputy Minister, an honest belief alone does not mean that Mr. Walters received ministerial authorization to grant a Section 9 variance. The Commission does not have the benefit of an affidavit or oral testimony from the Deputy Minister which might serve to clarify whether, in fact, he authorized Mr. Walters to grant the Section 9 variance in this case.
A review of Mr. MacMillan's June 28, 2000 letter (Exhibit R15) provides little assistance to the Commission in determining whether Mr. Walters was specifically authorized to grant a Section 9 variance. The Commission notes in particular Mr. MacMillan's statement:
Therefore, I feel that if a request is made for a variance, the appropriate action for the Department in this case is to allow the variance involved.
Taken in its context of a letter to the Appellant's Counsel, it would appear that Mr. MacMillan is stating his opinion of what the Respondent's position would likely be, if a request under subsection 9(2) of the Regulations were made.
While Mr. MacMillan's letter of June 28, 2000 could be interpreted as evidence that he personally made the decision, such a decision would be invalid as the request under subsection 9 (2) for a variance was not received by the Respondent until July 18, 2000. However, the Commission finds that Mr. MacMillan's letter was not an attempt to make a decision prior to the subsection 9(2) request for a variance.
The Commission finds that Mr. Walters honestly believed that he had the ministerial authority to issue a Section 9 variance in this case. However, an honest belief, even if supported by years of administrative practice by the Respondent's Department, is not enough. The authorization must be lawful. The Commission finds that neither the Minister's letters of authorization of August 8, 1995 and June 28, 2000 (Exhibit R21) nor the June 28, 2000 conversation between Mr. MacMillan and Mr. Walters, as noted in Mr. Walters' October 23, 2000 affidavit (Exhibit R22) provided Mr. Walters with the express authorization necessary to issue a Section 9 variance. Accordingly, the Commission finds that the Respondent has not granted a variance to the developer, and as no decision has been made by the Respondent, the Commission has no jurisdiction to hear this appeal.
4. Disposition
An Order denying the appeal will therefore be issued.Order
WHEREAS Lennis MacFadyen has appealed a decision made by the Minister of Community and Cultural Affairs on July 19, 2000 to grant a variance to the minimum side yard requirements on property number 202929 located in New Dominion;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on October 12 and 25, 2000 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 Planning Act
IT IS ORDERED THAT
1. The Commission is without jurisdiction to hear this appeal.
DATED at Charlottetown, Prince Edward Island, this 31st day of October, 2000.
BY THE COMMISSION:
Wayne D. Cheverie, Q.C. Chair
Maurice Rodgerson, Commissioner
James Carragher, 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.