Docket: LA00114
Order LA00-14

IN THE MATTER of a Request for Review of Commission Order LA00-10 by Edward Rice.

BEFORE THE COMMISSION

on Monday, the 27th day of November, 2000.

Ginger Breedon, Vice-Chair
Maurice Rodgerson, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

Written submissions were filed by:

1.    For the Appellant 

Edward Rice

2.    For the Respondent (Town of Souris)

Mildred Ehler

Reasons for Order

1.  Introduction

On August 16, 2000 Edward Rice (the Appellant) filed a Notice of Appeal with the Commission appealing the July 10, 2000 decision of the Town of Souris (the Respondent) to amend the Town's Official Plan and Subdivision Control Bylaw in respect of a proposed development by A.E. MacPhee Company Ltd. (the Developer).

Subsection 28(1) of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. P-8 provides for an appeal to the Commission within 21 days of the decision.

In Order LA00-10, dated September 29, 2000, the Commission found that it had no jurisdiction to hear the appeal, as the Notice of Appeal was received on the 37th day after the Respondent made its decision.

By letter dated October 15, 2000, the Appellant requested that the Commission review its decision concerning this matter.  This request is made pursuant to the provisions of Section 12 of the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988, Cap. I-11 which states:

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. 

A copy of Mr. Rice's request was sent to Mildred Ehler, Administrator of the Respondent, and Brian MacKenna, Counsel for the Developer, for comment.  No submission was received from Mr. MacKenna.  Ms. Ehler responded in an October 30, 2000 faxed letter.

2.  Discussion

In his October 15, 2000 letter, the Appellant states:

I would like to appeal on the grounds that in the Souris Town bylaws concerning rezoning it states that “a copy of the rezoning application shall be mailed to all property owners whose property lies within or partially within five hundred feet of any boundary of the parcel to be rezoned at least seven clear days prior to the date fixed for the public meeting and posted in no less than four conspicuous places.”

We are within five hundred feet and we were not notified of any changes that had taken place in the rezoning plans.  I will again stress that the rezoning plans had been changed numerous times without the public's input.  I ask you to give this concern some attention before coming to a final decision.

In her October 30, 2000 letter, Ms. Ehler responds on behalf of the Respondent:

There is nothing in Mr. Rice's letter which would provide any grounds for the Commission to reconsider its earlier decision.  Mr. Rice was clearly aware that a rezoning application had been received by Souris Council and he attended the public meeting where the application was discussed.  Council's decision on the application was made at a regular public meeting of Council.  Council is not required to provide any written notification of its final decision on the application.

The Commission still has no jurisdiction to hear this appeal.

3.  Findings

The Commission has considered the submissions of the parties and finds that the Appellant has not made a prima facie case entitling him to a review under section 12 of the Island Regulatory and Appeals Commission Act.

In Order LA97-11, In the Matter of a Request for Review of Commission Order LA97-08 by Keir Clark and Marion Clark, August 27, 1997, the Commission referred to previous decisions of the Public Utilities Commission and stated the following test to be used on a request for review matter:

As noted in previous decisions, the onus rests upon the applicant to show that a prima facie case exists which will entitle the applicant to the review.  A prima facie case will be shown only where the function of review should be exercised to correct an error of the Commission or to meet changed circumstances.

Changed circumstances may encompass either a situation which has developed after the decision or where new evidence emerges which was not known or not available at the time the original evidence was adduced.  Changed circumstances will dictate a review only if they are material.

Finally, the power to review is discretionary and will be exercised sparingly.

The Commission finds that the Appellant's request for review reveals no error of the Commission or changed circumstances. 

The notice provision in the bylaw quoted by the Appellant requires a copy of the rezoning application to be served on nearby residents.  This requirement was complied with. The information that was provided by the Appellant in his October 15, 2000 letter does not indicate that the Respondent is required to provide written notification of its final decision.

What is material to this matter is the time span between the Respondent's decision and the receipt of the Appellant's Notice of Appeal. The Appellant's Notice of Appeal was not received until the 37th day after the Respondent made its decision. Subsection 28(1) of the Act clearly requires a dissatisfied person to appeal to the Commission within 21 days of the decision.

As the appeal was not filed within 21 days of the Respondent's decision, the Commission has no jurisdiction in this matter.  The Commission does not believe the Appellant has made a prima facia case entitling him to a review under section 12 of the Island Regulatory and Appeals Commission Act.

4.  Disposition

The Commission has considered the submissions filed by the parties in this matter and determines that it will not review Order LA00-10.

Order

WHEREAS by written notice dated October 15, 2000, the Appellant has requested that the Commission review Order LA00-10;

AND WHEREAS a representative of the Town of Souris (the Respondent) has provided written comments to the Commission regarding the Appellant's request.

AND WHEREAS a request for review may be carried out pursuant to section 12 of the Island Regulatory and Appeals Commission Act;

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act

IT IS ORDERED THAT

1. The request for review is hereby denied.

DATED at Charlottetown, Prince Edward Island, this 27th day of November, 2000.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair

Maurice Rodgerson, 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.