Order LA99-07 - LA99010 - Planning Appeal - Rick Roberts v. Minister of Community Services & Attorney General (Oct. 20/99)

Docket LA99010
Order LA99-07

IN THE MATTER of an appeal by Rick Roberts against a decision of the Minister of Community Services and Attorney General, dated May 25, 1999.

BEFORE THE COMMISSION

on Wednesday, the 20th day of October, 1999.

Wayne D. Cheverie, Q.C., Chairman
Mary Burge, Commissioner
Norman Gallant, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition
Order

Appearances & Witnesses

1.    For The Appellant

Represented By:
Rick Roberts

2.    For The Respondent

Represented By:
Donald Walters

3.    For The Developer

Legal Counsel:
Kevin J. Kiley

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 by Rick Roberts (the Appellant) against a decision by the Minister of Community Services and Attorney General (the Respondent) to approve building permit number PBF-133-99. The permit was issued on May 25, 1999 to Catherine McKinnon to construct an entertainment barn on property number 91868, located in St0anley Bridge.

The Appellant filed a Notice of Appeal with the Island Regulatory and Appeals Commission (the Commission) on June 9, 1999. Following this and prior to the commencement of a hearing, both the Respondent (in Exhibit R17) and Developer (in Exhibit D3) raised preliminary matters.

The Commission heard arguments from all parties on the preliminary matters at a hearing held on September 28, 1999, and the decision which follows relates to those preliminary matters only.

2. Discussion

The Developer raised a number of preliminary matters as set out in Exhibit D3 which focus essentially on the following issues:

1.    the Developer submits that pursuant to subsection 28(6) of the Act, the Appellant failed to serve a copy of the Notice of Appeal on the Minister; and,

2.    the Developer contends that the Appellant's grounds for appeal as contained in the Notice of Appeal (Exhibit A1) are grounds which relate to a separate business which existed and has been carried out by the Developer prior to the issuance of the building permit and the construction of the building in question. The Developer contends that the Appellant's complaints concern an existing restaurant and ancillary sewage system and parking lot, which are not the subject of this appeal. The Developer submits that the grounds which relate to this matter should be dismissed.

The Respondent also made a submission (Exhibit R17) and states that there are no clear grounds to hear an appeal in this case. As for the Developer's contention that the Appellant did not serve the Minister with a copy of the Notice of Appeal – the Respondent could neither deny or confirm this statement.

In response to the Developer's submission on preliminary matters, the Appellant stated that he did serve a copy of the Notice of Appeal on the Minister within the required time period (part of Exhibit R17).

As for the grounds of appeal, the Appellant submits that his grounds are related to the proposed development and therefore this matter should proceed to a hearing on the substantive issues of the case.

3. Findings

The Commission has considered the submissions and arguments advanced by all the parties on the preliminary issues raised, and has come to the conclusion that the objections fail and that the hearing on the substantive matters raised in this appeal will proceed.

In arriving at the foregoing conclusion, the Commission reflected on Section 28 of the Planning Act . The relevant subsections are as follows:

Section 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.

…

(5)A notice of Appeal to the Commission under subsection (1) shall be in writing and shall state the grounds for the appeal and the relief sought.

(6)The Appellant shall, within seven days of filing an appeal with the Commission, serve a copy of the notice of appeal on the council or the Minister, as the case may be.

…
Grounds for Appeal

On the issue of grounds for appeal, subsection 28.(5) of the Act sets out the requirements that a notice of appeal … shall be in writing and shall state the grounds for the appeal and the relief sought. In considering this issue, the Commission finds the Act is silent in providing any guidance in determining what may be considered grounds. However, Mitchell, J.A. in speaking for the Supreme Court of Prince Edward Island – Appeal Division, had this to say in a recent reference to that Court:
The fact that an appellant must state the grounds of appeal and relief sought in writing in order to invoke the appeal procedure does not restrict the jurisdiction of IRAC in hearing or deciding the case. In situations where an appeal is by way of trial de novo grounds of appeal do not serve the same function as they do for instance in appeals to this court. [See: Salhany, Canadian Criminal Procedure, Canada Law Book Ltd,1968 at pp.203-4.] Their purpose in hearing de novo appeals is simply to alert the appeal tribunal and parties to the nature of the appellant's complaint with the decision, and the form of redress being sought. However, IRAC does not have unfettered discretion or unbridled power to deal with and decide appeals as it likes. It would be bound to hear, consider, and decide the issues of the case in accordance with the requirements and objects of the Planning Act.¹

The Commission's view is that as long as one can reasonably determine from the Notice of Appeal why the Appellant is dissatisfied with the decision, then the basic requirements of subsection 28(5) have been met. Notwithstanding that, the hearing then becomes the forum where the Appellant must present evidence to support these grounds.

Upon careful review of the Appellant's Notice of Appeal, the Commission is satisfied that the provisions of subsection 28(5) have been met. Therefore, the Developer's and the Respondent's motion to dismiss the appeal on the basis that the Appellant's grounds are insufficient is hereby dismissed.

The Commission will proceed to hear matters which are relevant to the building permit under appeal.
Service of Notice upon the Minister

In Exhibit D3, the Developer raises an argument that the Appellant has failed to comply with the provisions of subsection 28(6) of the Act, in that the Appellant failed to serve the Minister with a copy of the Notice of Appeal.

Based on the submissions by the parties, including the document contained in Exhibit R17 which appears to be a letter to the Minister advising of an appeal, the Commission believes the provisions of subsection 28(6) have been complied with.

The appeal will not be dismissed on this issue.

4. Disposition

An Order will therefore be issued dismissing the motions as raised by the Respondent and the Developer. The Commission will proceed to set a date forthwith, to hear the substantive matters of this appeal.

Order

WHEREAS Rick Roberts (the Appellant) appealed a decision by the Minister of Community Services and Attorney General (the Respondent) dated May 25, 1999;

AND WHEREAS prior to the commencement of a hearing on this appeal the Respondent and Catherine McKinnon (the Developer) raised preliminary matters;

AND WHEREAS the Island Regulatory and Appeals Commission (the Commission) heard these preliminary matters at a hearing on September 28, 1999;

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 preliminary issues raised by the Respondent and the Developer are hereby dismissed. The Commission will proceed to hear the substantive matters of this appeal on a date to be set.

DATED at Charlottetown, Prince Edward Island, this 20th day of October, 1999.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chairman
Mary Burge, Commissioner
Norman Gallant, 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.

¹ In the matter of Section 14(1) of the Island Regulatory and Appeals Commission Act (Stated Case), [1997] 2 P.E.I.R. 40 (PEISCAD)