Order No. P.990707
IN THE MATTER of the
Island Regulatory and Appeals Commission
Act, R.S.P.E.I. 1988, Cap. I-11; and the Petroleum Products
Act, R.S.P.E.I. 1988, Cap. P-5.1;
- and -
IN THE MATTER
of an application made by 150540 Canada Ltd.
(Douglas & Brian MacArthur), Richmond, for an initial petroleum products license in
respect of split-serve motor fuels dispensing in conjunction with a specialty store, fast
food restaurant and car wash to be located on Granville Street North, Summerside, Prince
Edward Island.
Wednesday, the 7th day of July, A.D., 1999
BEFORE
Wayne D. Cheverie, Q.C., Chair
Mary Burge, Commissioner
James Carragher, Commissioner
Decision and Order
Table of Contents
Appearances & Witnesses
Decision
I. Introduction
II. Review of Evidence in Support
III. Review of Evidence in Opposition
IV. Reasons for Decision
Order
Appearances and Witnesses
Participants in the hearing and the parties for whom they appeared were as follows:
FOR APPLICANT: 150540 CANADA LTD.
Counsel:
David W. Hooley, Q.C., Patterson Palmer Hunt Murphy
Witness:
Douglas MacArthur
INTERVENERS IN OPPOSITION:
IRVING OIL LIMITED:
Counsel:
Tracey L. Clements
KPR INC. (Rick & Jane Kennedy):
Witness:
Richard (Rick) J. Kennedy, C.A.
ULTRAMAR LTD.:
Witness:
Ken P. Bona
FOR THE COMMISSION:
H. Doris Pursey, Director - Petroleum Division
Harry MacDonald, Assistant to Director - Petroleum Division
RECORDING SECRETARY:
Faye Weeks, Secretary Petroleum Division
Decision
I. Introduction
By application dated 21 February 1999, Douglas and Brian MacArthur
on behalf of 150540 Canada Ltd. (hereinafter referred to as the "Applicant"),
sought from the Commission an initial petroleum products license covering split-serve
dispensing of motor fuels in conjunction with a specialty store, fast food restaurant and
associated car wash proposed to be established at Parcel Number 442806, Granville Street
North, Summerside, P.E.I.
Notice of this application dated 4 March 1999
appeared in both the Guardian and the Journal-Pioneer, with interventions either in
support of or in opposition to the granting of this license to be filed by 29 March 1999.
As a result of this Notice, written interventions were filed in opposition to this
application by Eugene P. Rossiter, Q.C. on behalf of Irving Oil Limited; KPR Inc. (Rick
and Jane Kennedy); and Ultramar Ltd. (Ken P. Bona).
At its meeting of 22 April 1999, the Commission fixed 9:00 a.m. on 19
May 1999 as the time and date for the commencement of a hearing into this application, and
Notice of Hearing dated 22 April 1999 was published in the Guardian and Journal-Pioneer
newspapers.
This hearing commenced as scheduled and was completed on the same day.
Nineteen documents relating to the application were entered as exhibits during the
hearing, and a total of three witnesses testified either in support of or in opposition to
the application. A listing of those appearing can be found on page 3 of this Decision
entitled "Appearances and Witnesses".
At the invitation of the Chair, Mr. Hooley opened his case on behalf of
the Applicant with a statement relating to the applicable legislation and associated forms
and supporting documentation, and outlined to the Commission what criteria he felt is
important for the Commission to consider in dealing with initial applications. He went on
to refer to the applicable sections of the previous legislation vs. the present
legislation in dealing with applications for licensing. Mr. Hooley noted that it is the
submission of the Applicants that we are not in a regime where the Applicant must show
that allowing his license might not result in existing people going out of business. He
went on to suggest that in assessing new entrants into the marketplace, the Commission
does not have the role of protecting existing competitors from new competition if that new
competition would serve the public interest, need and convenience.
Ms. Clements, on behalf of Irving Oil Limited, cautioned the Commission
not to overstate "public interest" in dealing with initial applications, as it
is only one factor of several to be considered. She also referred to "detrimental
impact" as being a factor, and also referred the Commission to several previous
Decisions of the Commission. Ms. Clements indicated that she feels it is inappropriate to
over-license an area for the sake of adding a new competitor to the mix without sufficient
justification.
Mr. Kennedy indicated in his opening statement that he was an
accountant by trade, and as such, was not prepared to argue the legal aspects of the case.
He noted that he did feel, however, that detrimental impact on existing outlets was an
issue to be addressed by the Commission in issuing new licenses. He noted he had to meet
the existing legislative and implied criteria for licensing under the Petroleum Products
Act; that he was prepared to live by the legislation; and that he felt that any similar
application should be dealt with using similar criteria.
Mr. Bona, in his opening statement, established that he was not present
to add a legal perspective to the process, but simply wanted to go through the stated
criteria, and indicated that his opinions were somewhat different that those of the
Applicant in meeting those criteria, and that he would be giving evidence in this regard
at a later time.
Mr. Hooley then entered several documents on behalf of the Applicant as
Exhibits in this mattersome of which corrected documents filed earlier.
Closing summations were given orally by Ms. Tracey L. Clements on
behalf of Irving Oil Limited; by Mr. Rick Kennedy on behalf of KPR Ltd.; and by Mr. David
W. Hooley on behalf of the Applicant. Mr. Bona indicated that he had nothing further to
add on behalf of Ultramar Ltd. At the adjournment of the hearing, the Chair noted that the
matter would be taken under advisement by the Commission, and the parties notified of its
Decision in due course.
II. Review of Evidence in Support
The only witness for 150540 Canada Ltd. (the "Applicant")
was Douglas MacArthur, President, who gave his address as Richmond, P.E.I. Mr. MacArthur
indicated that he and his brother had been involved in the motor fuels business all their
lives. He testified that his grandfather, J. P. Gaudet, originated the operation of a
general merchant outlet in the Richmond area sometime in the 1920s. Mr. Gaudet
operated this site until his death in 1957, after which time Mrs. Gaudet operated it until
Herman MacArthur, the Gaudets son-in-law and Douglas father, took over the
business and operated it as MacArthurs Clover Farm until around 1980. The witness
indicated that this outlet had always sold gasoline, but the gas was moved to
MacArthurs Texaco at Richmond in 1959, a service station operated by his father
until his death in 1984. In 1986, the two-bay facility was leveled, and he and his brother
Brian replaced it with a new building comprised of automotive service bays and a
convenience store with split-serve dispensing. The bays at this site were later closed due
to the fact that they proved uneconomical and the c-store was expanded. In 1992, a new
facility comprised of one lube bay, c-store and split-serve dispensing was opened at
Wilmot after a period of operating East Coast Tire, Water Street, Summerside, which site
also sold gasoline. The service bay was relocated to a building constructed at the rear of
the outlet with self-serve car wash bays (now five), and later abandoned altogether. A
single brushless carwash was also installed at the front of the facility, and eventually
expanded to two bays.
With regard to this current application, Mr. MacArthur said it had been
the Companys plan to build a motor fuels outlet on Granville Street North prior to
building the facility at Wilmot, but that its application had been turned down by the
Province for environmental reasons. He noted that it was a surprise to the Applicant when
Mr. Kennedy applied for and received approval for an outlet in that same area several
years later. He indicated that his company has an option on the parcel of land for which
licensing is being sought. He reviewed for the Commission Exhibit 4 which was filed in
support of the application, and described the recent and projected growth in the Granville
Street area as "phenomenal". He cited the construction at the County Fair Mall,
the Super Store construction, the Wendys/Tim Hortons combo, the new Canadian
Tire, new Dairy Queen, new law office, new Ultramar; and since the Companys
application was submitted, there has been an announcement of a new hospital and also a new
Cineplex directly behind the Ultramar with a proposed access road to be built. He
testified that there has been a noticeable shift in traffic patterns to Granville Street,
especially with regard to rural consumers coming to Sobeys and the Atlantic Super Store to
purchase their groceries, and then making decisions to purchase other products, such as
gasoline, in the area. Mr. MacArthur indicated that he predicts that there will be an
increase in housing in the immediate vicinity as well.
Mr. MacArthur expanded on his experiences and those of his brother and
partner, Brian MacArthur, in the petroleum and related businesses, and noted that in his
opinion, changes have to be constantly undertaken to capture the growth and keep up with
the needs and desires of consumers. He indicated that his peak time at the Richmond
location is mornings as a result of being located on the "going-to- work"
(right-hand) side of the road, and the peak time at the Wilmot location is evenings, since
they are located on the "going-home" side of the highway.
Mr. MacArthur testified about the outlets which he considered to be his
"competition", as outlined in the above-noted Exhibit 4. He noted that in his
opinion, the competition in the market area is "keen", but also indicated that
the operator is very important in this business, but some sites naturally become redundant
through no fault of their own, but because of changes in traffic patterns, changes in
service requirements, etc.
He went on to illustrate for the Commission his proposal to build a
"Y" design facility with pump islands located in the "starting gate"
configuration, and added that it is his belief that there is a nice synergy between fast
food/gasoline. He stated that his facility would be of a "specialty store" type
with fast-food drive-thru, which store would stock the usual items required by
motoristsoil, STP, gas line antifreeze, wiper blades, air fresheners, etc, as well
as cigarettes, pop, and bars. Upon questioning by Mr. Kennedy, he added that he would also
sell juices, bars, chips, gum, cough drops, ice cream novelties and rent movies. He
testified that the facility would have a car wash, vacuum, diesel and propanean
array of offerings, but no groceries or milk.
Mr. MacArthur also testified that there will be washrooms, telephone,
bank machinesbasically as many offerings as can be incorporated into the store to
meet the needs of the travelling public. While the petroleum supplier has not yet been
chosen, he indicated that his firm is negotiating seriously with both Petro-Canada and
Imperial Oil Limited. The blender pumps would be leading edge
technologypay-at-pumps, etc., and there would be three underground storage tanks
installed. He stated that it does not go to economic viability to just sell gasthat
ancillary products and services are necessary to support the site. His hours of operation
would be 6 a.m. to 11 p.m. on weekdays, and 8 a.m. to 11 p.m. on Sundaysthe same
hours as his other two outlets are being operated. He testified that this proposed outlet
would be constructed within 600 feet of the Kennedy Ultramar location but on the other
side of the road"the first outlet on the right-hand side as people leave
Sobeys, etc.". He noted that he felt that this would be a competitive benefit
to both outlets, as more traffic would be drawn to the area, and having an outlet on each
side of the busy street would be a benefit to consumers. He also confirmed that he has
conditional approval from the Department of Technology and Environment, and zoning
approval from the City of Summerside.
When questioned, Mr. MacArthur made the assumption that 40 to 50 per
cent of his anticipated volume of 2.5 million litres in the first year (with anticipated
10% per year increases thereafter) would come from the outlets located in the Summerside
area, and that the remainder would come from new traffic and outlets outside the market
area, such as Kensington. He suggested that with the proposed growth on Granville Street,
these figures will increase. His testimony was that the population in the area is growing,
resulting in more vehicles, more people are working (less unemployment), businesses in
Slemon Park are being added or expanded (272 housing units). He noted that with the
proposed equipment, the site could readily handle four million litres. He noted further
that his projections were conservative, and indicated that the outlet could be at a
breakeven point in three years. In answer to questions from Mr. Kennedy, Mr. MacArthur
testified that the parcel of land in question has 200 feet of frontage by 400 feet in
depth. He reviewed with Mr. Kennedy the differences between the current Wilmot location
and what is proposed, and offered the opinion that change must be ongoing at motor fuels
sites, and that operators have to realize that they have to change with the market. He
confirmed that the capital costs of the facility are estimated to be somewhere between one
and one and a quarter million dollars, depending on the leasehold improvements required.
He agreed with Mr. Kennedy that "brand" is important, as is
"franchise", and noted that he foresees a slow steady increase in volume in the
area. Mr. Kennedy questioned Mr. MacArthur relative to the proposed "starting
gate" pump island configuration and suggested that this type of configuration had not
yet been approved by the City of Summerside. Mr. Kennedy commented that a similar proposal
with regard to his outlet had been turned down.
Mr. Hooley in his closing statement summed up the position of the
Applicant and once again reiterated his contention that there is quite a different
emphasis placed on the issuance of licenses by current legislation in that Section 20
indicates a predisposition to issue providing a proper consideration is given the factors
therein outlined. He argued that any detrimental effect on existing outlets as a result of
opening a new site must clearly indicate that the "motoring public" would be
affected negatively as a result. Mr. Hooley argued that economic viability of the proposed
outlet is not a relevant factor to be considered by the Commission. That having been said,
Mr. Hooley indicated that the record of performance of the Applicant is not in question,
the location is one where traffic has increased by 16 percent over the previous year, that
there have been significant intersection improvements at Route 2, and that there is no
evidence on which to deny the application. Mr. Hooley stressed that this outlet would add
a specialty store, propane and diesel to the areaand would be equipped with the
latest in dispensing equipment (pay-at-pumps) in the new "starting-gate"
fashion, which configuration should increase the safety of consumers on the lot.
II. Review of Evidence in Opposition
Mr. Richard James ("Rick") Kennedy, C.A., testified as
President and Shareholder of KPR Inc., which company operates Granville Gas and
Convenience Centre on Granville Street North in Summerside. He referred to a letter filed
by his Company in opposition to the application, which letter was entered as Exhibit No. 7
in this matter, and as well filed a further document relating to points he wished to make
in support of his intervention, which document was entered as Exhibit 19. He led evidence
in support of the intervener which he represented, and expressed the view that the
application before the Commission is incomplete in several respects. Mr. Kennedy outlined
several reasons why it is felt by this intervener that this application should be denied.
He referred to figures contained in Exhibit 19 relating to population of the Summerside
area, which figures indicate an increase in population of 6.5 per cent over five years.
Mr. Kennedy described this increase as "minimal". He testified that in his
opinion, no public interest or necessity has been shown by the Applicant. He noted that
from anywhere in the Summerside area presently, a potential customer can find gasoline
within a five-minute drive, and feels that there is now a high level of competition in the
area. He feels that his outlet must capture some of the projected growth to become viable,
and feels there is no void in service in the area. He indicated that he presently has the
approval of the Commission with respect to the addition of a car wash at his site, and
that he felt the Applicant would not be offering any service which is not now available in
the area. He noted that Water Street is busier than Granville Street, but that Granville
Street is busier than it used to be.
In response to a question by Ms. Clements, Mr. Kennedy testified that
in addition to his wife, Jane, who is the manager of the outlet, the Company has been
assisted in the operation of the outlet by eleven employeesthree full-time and eight
part-time. At the time of his testimony, one employee had left by mutual consent, and
there were presently only ten employed at the site. He testified that the business has
been in operation since 9 November 1998, and at the time of the license application, he
projected sales at two million litres for the first year. As the outlet hasnt had
the advantage of being in business for a year yet, it must use the first quarter as an
indicator, and noted that he is unsure whether or not it will meet the projection. He made
the assumption that he would probably reach at least one and one-half million, and feels
that a break-even point would be 2.6 million litres (with three million litres being
described as "comfortable"). He noted that for the outlet to be operated
effectively, there should be three persons at the site at all times, which is not always
the case. He noted that inside sales are somewhat lacking, and his financial projections
involved the high end of the markup rangewhile in reality, the outlet is only able
to price at the lower end of the scale due to competitive pressures.
Mr. Kennedy, in response to questions of Mr. Hooley, agreed that his
livelihood at present is as a result of being employed as a C.A., while his wife, Jane, is
on salary from the c-store/gasoline business. He insisted that there is no necessity for
another outlet on Granville Street at this time, and disagreed with Mr. Hooley as to
whether "detrimental impact" on existing outlets is a factor to be considered by
the Commission in dealing with initial applications for licensing. During
cross-examination, he indicated that his Company is presently in a deficit position. In
debate with Mr. Hooley, Mr. Kennedy insisted that the Commission must speculate and make
assumptions relative to the impact of a new outlet on existing outlets rather than through
examination of individual financial recordsand that similar speculations and
assumptions are necessary in preparing an application or an intervention relating to same.
In summing up his evidence, Mr. Kennedy suggested that
"small" is better in many regards, and that regulation of the petroleum industry
exists in Prince Edward Island, and that all should play by the same rules. He noted that
there has been commercial development and other added growth in the Granville Street area,
but that the market opportunity does not equal public convenience and necessity at this
time. He further pointed out that propane and diesel are presently available within two
kilometres from the proposed site each way. He said that the present competition is alive
and well, with practically every outlet pricing at the minimum allowable markup. He
stressed that it would not, in his opinion, be reasonable to "mimic" his outlet
at this time while there is a lot of capacity yet to be filled, and that approval of the
MacArthur application would have a significant detrimental impact on his and other
operations in the area. He commented that the proposed new site would eventually have
equal to or greater volume than the two other motor fuels outlets now operated by the
Applicant, and thus would eventually become another "major" site in the area. He
agreed that the Applicant has a good location, and the contention that it would be
convenient to consumers leaving the City makes some sense, although he does not see
vehicular entry and exit at his location as being a problem at this time. Mr.
Kennedys position is that no further outlets should be licensed in the Summerside
area until it is obvious that the needs of the public are not being met by the existing
sites, and that the current outlets can readily handle the demands in the area. He
indicated that the Applicant has not proven public convenience and necessity as is
required.
Mr. Ken Bona testified on behalf of Ultramar Ltd. with regard to his
letter filed in opposition to the application, which letter was entered as Exhibit No. 8
in this matter. He indicated that having more choice is a conveniencehowever, he
suggested to the Commission that it is doubtful that a customer would be better served if
you add a new site at the expense of losing an existing site or sites. Mr. Bona noted that
there has been quite a rationalization over the past ten years in the retail industry in
Canada and higher volumes are required to support motor fuels outlets, especially in view
of present environmental requirements. He agreed that it is possible that some existing
sites will "fade out" of the marketplace in any event for environmental
reasonsor other hidden factorsbut that adding this proposed outlet will
accelerate this process somewhat. Mr. Bona agreed that in all likelihood the Granville
Street area will continue to be developed, but that today, the needs of the motoring
public are being met. Upon questioning, Mr. Bona noted that while three outlets in the
Summerside area are supplied by Ultramar, he filed his intervention primarily in the
interests of the Kennedy outlet. Mr. Bona declined the opportunity to sum up his
intervention near the close of the proceedings.
Ms. Clements did not call any evidence in support of the intervention
filed earlier by Mr. Rossiter on behalf of Irving Oil Limited. In summation, she referred
the Commission to various previous decisions, and indicated that the detrimental impact
which new sites might have on existing ones goes directly to the test and has been
prevalent throughout the Commissions decisions in the past. She noted that if the
proposed new site were to attain 2.5 million litres in its initial year, that this volume
has to come from somewhere, and that one of the competitors in this matter is located only
600 feet away. She also stressed that economic viability has been a factor looked at
seriously by the Commission, and she feels that the demand is not there in this case. She
indicated that it has been stated on many occasions that the desire of an applicant to
enter the market is insufficient in regard to the establishment of demand. She cautioned
the members of the hearing panel against "overlicensing" an area, but to ensure
that they satisfy themselves that a real need for the outlet exists, and that the onus of
proof in this regard is on the applicant.
IV. Reasons for Decision
The primary statutory provision guiding the Commission in this
matter is s.20 of the
Petroleum Products Act, R.S.P.E.I. 1988, Cap. P-5.1:
s.20...When issuing a license with respect to the operation of an
outlet operated by a retailer, the Commission shall consider the public interest,
convenience and necessity by applying such criteria as the Commission may from time to
time consider advisable including but not restricted to the demand for the proposed
service, the location of the outlet, traffic flows and the applicant's record of
performance.
A close reading of this section reveals that the Commission is required
to consider the public interest, convenience and necessity by applying such criteria as it
may from time to time consider advisable including but not restricted to the four
specific components set out in that section of the Act, supra. This means that
applications for initial retail licenses must be assessed in terms of each specific
location in addressing the test of public interest, convenience and necessity. Thus, the
various factors relating to a specific application must be weighed carefully by the
Commission in reaching a conclusion. The legislation with regard to authorizing the
issuance of initial licenses of this nature is clearly in place for the purpose of
establishing and maintaining a safe, reasonable network of facilities which provide the
motoring public with essential petroleum products and associated services.
The Commissions task is to assess an application in the light of
a number of factors, including the services which are presently available, the volumes
presently dispensed in a market area, and to review the specific evidence before
iteither in document form or oral evidence taken at a public hearing, or
bothbefore making a decision as to whether or not the requested license should be
issued.
As indicated above, the Applicants representative, Mr. Hooley,
expressed the view that while the Commission must give consideration to the various
factors outlined in s. 20, he suggested that the Applicant does not have to prove that
every aspect of the criteria is necessarily met.
Although the specific criteria outlined in s. 20 of the
Petroleum
Products Act, supra, (which Act was proclaimed on February 1, 1991) gives guidance
with regard to the licensing tests to be met which were not specifically outlined in the
former legislation, it should be pointed out that the Commission received direction in
this regard from the Supreme Court of Prince Edward Island Appeals Division in
Decision GDC-6349. This judgement was issued in the matter of an Appeal by Irving Oil
Limited from an Order of the Public Utilities Commission made the 23rd day of
January, A.D., 1986. Sometime after that date, the original document entitled
"Requirements for Initial Licensing" was developed by the Commission in an
effort to assist applicants and others involved in applications of this nature, and this
document has been revisited from time to time as the need arose.
Irving Oil Limiteds representative, Ms. Clements, in her opening
remarks, suggested that the Commissions previous position has been that the onus is
on the Applicant to prove that the application meets the test of public interest,
convenience and necessity, and that the Commission should continue to give consideration
to how existing licensed outlets would be affected by its approval.
While it is certainly in the best interests of any Applicant to
substantiate its case to the best of its ability by demonstrating that there is sufficient
demand for the outlet at its chosen location to warrant a favourable outcome with respect
to its application, certain assumptions based on current and historical data must
obviously form part of the decision-making process in the case of non-established
situations.
In this case, the Commission reviewed the evidence, and it is obvious
that the only demonstrated support for the proposed licensing was by the Applicant. The
spokesperson, Mr. Douglas MacArthur, testified that he felt the approval of this
application would be an asset to the area and would be a definite convenience to the
public, especially for persons travelling on that side of this busy street, Granville
Street North. He provided some evidence of necessity for the proposed services to be
offered in that he is proposing to supply propane and diesel in addition to all grades of
gasoline, as well as a fast-food outlet and a car-wash. He indicated that his experience
in this industry and in the Summerside area in particular leads him to believe that there
is a trend from rural to urban in the purchasing habits of consumers.
The chief opposition to this application came from the operator of a
competitive site across the street from the proposed location. This operator recently
successfully convinced the Commission of the necessity for this outlet using similar
support to that given by the present Applicant. Mr. Kennedys testimony in late 1997
relating to his licensing suggested anticipated sales of approximately two million litres
initially, and noted that this estimate was conservative, and that higher volumes should
follow.
It is somewhat difficult for the Commission to make a finding on
whether the projected demand will be achievedhowever, it appears that the intervener
KPR Inc. will in all likelihood achieve its projections in 1999, and with the experience
of the Applicant, it is likely that the proposed outlet would also achieve the necessary
volume to support the capital and operational costs to be incurred. The Kennedy site is
the only motor fuels outlet on Granville Street, being approximately 5 kms. in length, and
apparently very heavily-travelled.
There has been growth in the sales of product in the general area over
the last five years, as indicated by the Applicants submission. It is apparent from
the changes taking place in the Granville Street area that additional services of the type
to be offered, if not required immediately, will soon be required, and the Applicant seeks
to fill any present need and future need as it occurs.
The Commission also reviews the record of performance of an applicant
with respect to its anticipated ability to establish and continue to operate a proper
business. In this regard, the Commission finds that the Applicant's success in the
operation of two presently-licensed motor fuels outlets indicates strongly that it is
capable of properly operating a further similar outlet. The Commission notes that while a
definite supplier has not been named, it is obvious that the Applicant has the expertise
to negotiate a proper supply agreement should it be successful in obtaining approval in
principle from the Commission with regard to the requested licensing.
The City of Summerside has indicated that the zoning of the proposed
location is appropriate for this type of facility, and therefore it is not a significant
factor to be considered in regard to the success or failure of this application. It is
possible that having two outlets, one on each side of Granville Street North, will enhance
the safety of consumers by having the choice to purchase product on either side rather
than having to cross traffic to enter and exit the site. It appears that the City is
satisfied with the proposed entrance/exit locations on Granville Street North. There seems
to be sufficient land to handle the scope of the facility effectively.
Mr. Hooley referred the Commission to s.11 of the previous
Petroleum
Products Act, R.S.P.E.I. 1974, Cap. P-4, which read as follows:
"No retailer’s license
shall be issued with respect to any outlet that was not being operated on
the twenty-fifth day of March 1948, unless, in the judgment of the
Commission, public convenience and necessity so require.
R.S.P.E.I. 1951, c.109,s.2."
He suggested that when compared to s. 20 of the present
Act, supra,
it appears that the Legislature shifted its emphasis when allowing for a petroleum license
from one of prohibition to one of permission in certain circumstances. The Commission
finds this comparison interesting. In the end, the Commission has reviewed the various
factors relating to this application and has determined that the test outlined in s.20 of
the Act, supra has been met.
The application is therefore approved in principle in accordance with
the Order appended hereto.
Order
THE COMMISSION HEREBY ORDERS:
1) That the application of 150540 Canada Ltd.
(Douglas and Brian MacArthur) dated 21 February 1999 for an initial petroleum products
dealer's license with respect to split-serve motor fuels dispensing in conjunction with a
general merchant (specialty store) outlet with attached car wash and fast food restaurant
to be established on Granville Street North in Summerside, Prince Edward Island be
approved, conditional on the outlet being operated in accordance with the application and
verbal evidence given at the public hearing, and conditional on all operating requirements
being met prior to the issuance of a Petroleum Products License.
2) That detailed plans are submitted with respect to
the total facility prior to the commencement of construction, including provision for
parking of vehicles on the lot in such a manner as to ensure a clear line of vision to
motor vehicle operators entering and exiting the outlet.
3) That a copy of the building permit issued by the
City of Summerside with respect to this total facility be filed.
4) That pump nozzle fees be paid prior to the
issuance of the license.
5) That the authorization contained in this Order is
valid for a period of four months from the date of its issue.
DATED at CHARLOTTETOWN this 7th day of JULY,
A.D., 1999.
BY THE COMMISSION:
Chair
Commissioner
Commissioner
NOTICE
Section 58 of the
Petroleum Products Act reads as
follows:
58. Where any person has the status of a party or is an
intervenor in any hearing before the Commission, he is entitled
(a) to appeal the decision of the Commission to the Appeal Division;
and
(b) to participate as a party in the hearing of an appeal
and an appeal shall be on a question of law or jurisdiction only and be
governed by section 13 of the
Island Regulatory and Appeals Commission Act.
Sections 13.(1) and (2) of the
Island Regulatory and Appeals Commission 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.