By letter dated August
5, 2009 addressed to the Appellants and the Community, Commission staff
identified a jurisdictional issue.
A deadline for written submissions on the
jurisdictional issue was established and later extended.
The Appellants submitted their written
submissions on the jurisdictional issue on September 15, 2009.
The Community retained legal counsel, and
Counsel for the Community filed written submissions on September 18, 2009.
 In a series of earlier
appeals filed by various appellants [LA09003 to LA09007 inclusive] in
respect of previous decisions of the Community with respect to the 2009
Official Plan and the 2009 Bylaw, said appellants which included the
Appellants of the present appeal, Commission staff referred those various
appellants to earlier Orders of the Commission, namely Order
Jennings et al v. City of Charlottetown and Order
LA04-11 Andre J. Darville v. Town of Cornwall.
earlier appeals were consolidated and submissions on the jurisdictional
issue were sought. On July 7,
2009 Commission staff advised all parties to these earlier appeals that the
Community "�confirms that the [previous] motions to approve and adopt the
2009 Official Plan and 2009 Zoning and Subdivision Control Bylaw have been
rescinded". On July 8, 2009, the appellants filed written submissions on the
earlier appeals. On July 13,
these appellants filed a letter advising the Commission that they intended
to withdraw those appeals on a 'without prejudice basis' thus reserving the
right to file a future appeal. On July 17, 2009, Commission staff advised
these appellants of certain amendments to the
proclaimed on June 30, 2009 and published in the July 11, 2009 Royal
Gazette. On July 20, 2009,
the appellants formally withdrew their earlier appeals.
The Jurisdictional Issue
 The Commission has previously addressed the matter of
appealing decisions to adopt new or revised official plans and
implementing bylaws. A review
of two decisions is helpful in setting the context for the Commission's
approach in considering whether it has jurisdiction to hear the present
 In Order
LA00-01 the Commission concluded:
So that the conclusion arrived at herein is clear,
the Commission hastens to reiterate its previous position that a
dissatisfied person does have the right to appeal a decision by Council to
approve or deny a rezoning or bylaw amendment because that is a decision
of Council in the administration of the Bylaw. Contrary to that situation,
what the Commission has found in this case is that the City developed a
new Official Plan and Bylaw pursuant to statutory authority and these
decisions are not appealable to the Commission.
 In Order
LA04-11 the Commission states:
WHEREAS Andre J. Darville (the Appellant) filed a
Notice of Appeal, dated June 30, 2004 and received by the Commission on
July 5, 2004, appealing the June 16, 2004 decision of the Town of Cornwall
(the Respondent) to rezone the By-Ways Trailer Park form RM1 (Mobile Home)
to R3 (Multiple Family Residential);
AND WHEREAS the Commission has been advised by the
Respondent that the change in the zoning designation of the By-Ways
Trailer Park occurred as a result of the Respondent's new Development
Bylaw, Bylaw #403, which received second reading and was adopted by the
Respondent's Council on June 16, 2004 and received the approval of the
Minister of Community and Cultural Affairs on July 26, 2004;
AND WHEREAS the Commission on August 31, 2004 invited
the parties to file written submissions, said submissions due on or before
September 14, 2004 on the preliminary issue of whether the Commission has
the jurisdiction to hear this appeal;
AND WHEREAS the Commission on September 8, 2004
received written submissions from the Appellant on the preliminary issue
of jurisdiction concerning this appeal;
AND WHEREAS the Commission on September 9, 2004
received written submissions from the Respondent on the preliminary issue
of jurisdiction concerning this appeal;
AND WHEREAS the Commission has not received a written
submission from MacLennan Holdings Ltd. (the Developer)
AND WHEREAS the Commission reviewed all the
information on file for this appeal;
AND WHEREAS the Commission takes notice of the
decision of the Commission Order
LA00-01 Arthur Jennings et al v. The City
AND WHEREAS the Commission held in Order LA00-01 that
where a municipality has developed a new Official Plan and Bylaw, the
Commission does not have the jurisdiction to hear an appeal of these
decisions and the Commission also does not have the jurisdiction to hear
an appeal of the decision of the Minister to approve a bylaw under section
17 of the
and an Official Plan under subsection 14(2) of the
AND WHEREAS the Commission finds, based on the
information before it, that the reasoning of the Commission in Order
LA00-01 is applicable to the present appeal;
NOW THEREFORE, pursuant to the
Island Regulatory and
Appeals Commission Act and the
IT IS ORDERED THAT
1. The Commission is without
jurisdiction to hear this appeal.
Prince Edward Island,
this 20th day of October, 2004.
 In an August 5, 2009 letter to the parties to the
present appeal, Commission staff noted in part:
Appeal #LA09014 Wanda Wood and Heather
McBeath v. Community of
I acknowledge receipt of the above captioned appeal,
filed on July 28, 2009 while I was out of the office.
It is my understanding that the Community has a copy of the Notice
I would note that there is a jurisdictional issue
which will have to be considered by the Commission.
This jurisdictional issue was raised with the earlier appeals
LA09003 to LA09007 inclusive that were recently withdrawn.
An additional dimension to the jurisdictional issue
now exists. On July 17, 2009,
I first learned that various amendments to the
proclaimed on June 30, 2009 and published in the July 11, 2009 Royal
Gazette. The amendments
consist of a notice requirement contained in a new section 23.1 and
amendments to section 28 [the appeals section] of the
The new subsection 28 (1.1) is germane to this appeal and reads as
to subsections (1.2) to (1.4), any person who is dissatisfied by a
decision of the council of a municipality
(a) that is made in respect of an application by the
person, or any other person, under a bylaw for
(i) a building, development or occupancy permit,
(ii) a preliminary approval of a subdivision,
(iii) a final approval of a subdivision; or
((b) to adopt an amendment to a bylaw, including
(i) an amendment to a zoning map established in a
(ii) an amendment to the text of a bylaw,
may appeal the decision to the Commission by filing
with the Commission a notice of appeal.
Subsections (1.2) to (1.4) read as follows:
(1.2) In subsection (1.1) and subsection (1.4)
"bylaw" means a bylaw made under this Act.
(1.3) A notice of appeal must be filed with the
Commission within 21 days after the date of the decision being appealed.
(1.4) For greater certainty, where a person is
dissatisfied by the decision of a council of a municipality to adopt an
amendment to a bylaw, the 21-day period for filing a notice of appeal
under this section commences on the date that the council gave final
reading to the amendment to the bylaw.
I would ask the parties to file written submissions
on the issue of whether the Commission has the jurisdiction to hear this
The Appellants' Submissions
 The Appellants filed a very detailed written
submission with the Commission.
The pith and substance of the Appellants submissions, pertaining to
the question of the Commission's jurisdiction, follows.
We further contend that the proposed 2009 Official
Plan and Zoning & Subdivision Control Bylaws is not a new/replacement for
the existing 2002 Official Plan and Development Bylaw.
Once again there is no documentation to show that Council requested
or was given ministerial permission to revoke or replace the existing Plan
and Development Bylaw.
We, therefore, contend that the documents adopted on
July 17 and 21 and sent to the Minister for approval are amendments to the
2002 Official Plan and Development Bylaw and that the Commission has the
jurisdiction to hear this appeal concerning them.
 The Appellants request that the Commission declare
that the Community's decisions to approve the 2009 Official Plan and the
2009 Bylaw are null and void.
The Community's Submissions
 Counsel for the Community also filed a very detailed
written submission with the Commission.
A portion of this submission follows.
17. It is submitted that the adoption of the new 2009
Official Plan and the making of the new 2009 Bylaws to implement that Plan
are decisions by Council pursuant to the statutory powers given to all
municipalities to carry out these functions under sections 11-20 of the
council of the Community of Victoria was very diligent in adhering to all
of the procedural requirements found therein in an effort to allow this
process to run as smoothly as possible and it is our submission that they
did so correctly and effectively.
18. As such, initially adopting an Official Plan and
enacting a Bylaw to implement that Plan is a statutorily authorized
legislative act by the duly elected Council, not a judicial or
quasi-judicial act that is subject to am appeal under section 28 of the
19. It is a trite principle of common law that, - aside
from an infraction of the Canadian Charter of Rights & Freedoms, - a
legislative action is not a matter that the courts or administrative
tribunals have jurisdiction to review.
An aggrieved person's remedy for a legislative action with which
they are unhappy is at the electoral polls, not in the courts, nor before
administrative tribunals such as the Commission.
Section 28 of the
thus defined and continues to define
the Commission's limited jurisdiction in a manner consistent with this
longstanding principle of constitutional law and at common law.
 The Community requests that the Commission dismiss
the appeal as the Commission has no jurisdiction to hear the appeal.
 After a careful
review of the submissions of the parties and the applicable law, it is the
decision of the Commission that it does not have the jurisdiction to hear
this appeal. The reasons for the Commission's decision follow.
 In Order
Arthur Jennings et al v.
the Commission observed:
Having considered all of the arguments advanced by all the parties, it is
the Commission's opinion that the decisions by the City
in this case were not decisions in respect of the administration of
regulations or bylaws, but were decisions made pursuant to specific
statutory provisions of the
The City's Official Plan and Bylaw must be viewed as something greater
than merely an amendment or series of amendments to those official plans
and bylaws which previously existed. On the contrary, the Commission views
Charlottetown and its
Official Plan and Bylaw as a
new City with
a new Official Plan and Bylaw, albeit an amalgamation of many parts
consisting of the former municipalities which had their own official
plans and bylaws. Further, the Commission views the adoption of the
Official Plan and the making of the Bylaw, decisions by Council under
the statutory powers given to all municipalities to carry out these
functions under the
Planning Act, and not decisions within the
administration of bylaws as provided in subsection 28(1) of the
The City's decisions to adopt the Official Plan and make the Bylaw are
therefore, quite distinct from those decisions undertaken by a
municipality where it decides to rezone a parcel of land or amend its
bylaw. Typically, municipal bylaws specifically provide for zoning and
bylaw amendments by application. The Commission is of the opinion that
decisions made under a specific bylaw provision are clearly made by a
municipality in the administration of its existing bylaw and, as such, are
appealable to the Commission under Section 28 of the
Planning Act. In these cases,
the Commission will also consider the implications for the official plan.
The Commission and its predecessor, the Land Use Commission, have a
long-standing history of considering such matters.
In considering all of this, the Commission is of the opinion that
there clearly has been a revocation of what previously existed in the way
of official plans and bylaws, and that the City has adopted a new Official
Plan and made a new Bylaw � and the statutory authority to do so is under
the provisions of the
Planning Act. As such, the
Commission finds these not to be decisions in respect to the
administration of bylaws, but decisions made pursuant to other specific
provisions of the
Planning Act. The Commission
therefore concludes that as these decisions are not of the nature
contemplated under the provisions of Section 28 of the
Planning Act, they are ultra
vires the Commission's jurisdiction.
 A careful review of sections 11 to 20
inclusive of the
is helpful to determine whether the
Commission has the jurisdiction to hear the present appeal.
The Commission notes the following:
Subsection 11(1) refers to the adoption of an
official plan or any review of an official plan.
No distinction is made between the initial adoption of the
official plan and its subsequent review.
Subsection 11(2) sets out a process required
prior to the adoption of an official plan or a review of an official
plan. This process
includes public consultation and also includes and refers to proposed
The official plan must be recommended for
adoption by planning board, adopted by council and approved by the
approval by the Minister, the official plan becomes the official plan
for the municipality. [sections 13, 14 and 15]
Section 15.1 requires a review of the official
plan and bylaws at intervals of not more than five years.
Where a municipal council fails to comply with this
requirement, the Lieutenant Governor in Council (LGC) may, by order,
declare the official plan and the bylaws or parts of these documents
null and void. The use of
the word "may" gives discretion to the LGC.
It is important to note that the LGC is not obligated to
declare the official plan and bylaws null and void.
Section 16 gives a municipal council the
authority to make bylaws implementing the official plan.
Section 17 requires that the bylaws be approved by the
Minister. Section 18
requires a public consultation process before a council may make a
Section 19 sets out the process to make a bylaw.
Section 20 sets out the matters for which bylaws
may be made.
 The present wording of section 28 of the
became law as a result of proclamation on June 30, 2009.
The previous wording of subsection 28(1) of the
Planning Act, which was the
same wording under consideration in Order
et al, was 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.
 With the benefit of hindsight, it is
perhaps unfortunate that the words underlined from the old subsection
28(1) were not included in the amended subsection.
However, the Commission's decision in Order
et al continues to guide the Commission as to the nature of its
 Within the sector of land use planning
decisions, the Commission is a quasi-judicial tribunal granted the
authority to hear certain kinds of municipal planning decisions.
These decisions have always related to administrative decisions.
For example, the decision to issue, or not to issue, a building
permit is an administrative decision.
Such a decision may be made by a municipal council, or by a person,
such as a development officer, delegated by a municipal council to make
such a decision. Administrative decisions quite commonly may be appealed to an appropriate
administrative tribunal or to the courts.
An administrative decision frequently relates to a specific
application, such as an application for a building permit.
 By contrast, a legislative decision is a
decision to create, or amend, a law.
While a tribunal or court may be called upon to interpret
legislation, the validity of the legislation is usually beyond the reach
of such tribunal or court. There are always exceptions, usually limited to issues of
constitutionality and the Charter of Rights and Freedoms.
 As a result, administrative decisions of a
wide range of decision makers, including elected municipalities, may be
appealed to tribunals or the courts while the legislative decisions of
elected bodies are normally free from such a challenge.
 Under the
Planning Act, there is a
specific statutory process for the creation and review of an official plan
and the creation of a bylaw to implement the official plan.
 Section 1 of the
Interpretation Act reads
1. In this Act
(a) "Act" means an Act of the Legislature;
(b) "enact" includes to issue, make, establish or prescribe;
(c) "enactment" means an Act or a regulation or any portion
of an Act or regulation;
(d) "public officer" includes any person in the public
service of the province
(i) who is authorized by or under an enactment to do or
enforce the doing of an act or thing or to exercise a power, or
(ii) upon whom a duty is imposed by or under an
(e) "regulation" means a regulation, order, rule, form,
tariff of costs or fees, proclamation or bylaw enacted
(i) in the execution of a power conferred by or under
the authority of an Act, or
(ii) by or under the authority of the Lieutenant
Governor in Council,
but does not include an order of a court or an order
made by a public officer or administrative tribunal in a dispute between
two or more persons;
(f) "repeal" includes revoke, cancel or rescind.
 Under the
Interpretation Act, a bylaw enacted in the
execution of a power conferred by an Act, in this case the
has the same authority as a regulation.
The Commission finds that the creation of an official plan or a
bylaw implementing such official plan, or the statutorily required review
of such documents, is a legislative process which may not be appealed to
 The Commission has had the benefit of applying the
present wording of section 28 of the
for over one and one
half years. Based on this
experience, it is the view of the Commission that the amendments to the
enacted in 2006 and proclaimed in 2009 were to codify the
body of administrative law resting on past Orders of the Commission,
rather than to enhance or restrict the Commission's jurisdiction.
 While clause 28(1.1)(b) of the
appeal of a decision to amend a bylaw, the Commission interprets this
clause as pertaining to bylaw amendments made as an administrative, rather
than a legislative, function of a municipality.
Thus an amendment to a bylaw, for example an amendment to a zoning
map, along with any necessary consequential amendments to an official
plan, for example an amendment to the future land use map, both of which
were required to allow a specific development project to go ahead, are
viewed as administrative decisions which may be appealed to the
Commission. By contrast, a
comprehensive review of the official plan and the accompanying review of
the implementing bylaw, not pertaining solely to any one specific
application, constitute a legislative enactment made by the municipality.
 The Commission finds that the principles contained in
Arthur Jennings et al continue to apply and thus a decision
to enact a new official plan, or a new implementing bylaw, or a statutory
review of either document is a legislative decision and the Commission has
no jurisdiction to hear an appeal of such a decision.
Accordingly, the Commission finds that it has no jurisdiction to
hear the present appeal.
 An Order stating
that the Commission has no jurisdiction to hear this appeal with be issued.
Appellants Wanda Wood and Heather McBeath (the Appellants) appealed two decisions of the
Community of Victoria (the Community), dated July 17, 2009 and July 21,