Regulatory and Appeals Commission (IRAC), Prince Edward Island

FAQ's - Planning Act Appeals - Island Regulatory and Appeals Commission (IRAC), Prince Edward Island, Canada

	Frequently Asked Questions Planning Act Appeals

The following information is intended as a guide to appeals under the Planning Act and not as a legal reference. The Planning Act should be consulted for an exact statement of law.

How do I file an appeal with the Commission?

You must file a Notice of Appeal document. The portion of Notice of Appeal applicable to the Notice of Appeal document states:

21.0 Methods of Filing

1. A document may be filed with the Commission by any of the following methods:

(a) delivering a copy to the Commission office;
(b) mailing a copy to the Commission office;
(c) transmitting a copy to the Commission via fax or e-mail; or
(d) such other manner as the Commission may determine.

2. A document must be filed with the Commission during business hours between 8:30 a.m. and 4:00 p.m., every day except a holiday. A document received by the Commission after 4:00 p.m. or on a holiday shall be deemed to have been filed on the next day that is not a holiday.

Can I appeal ANY decision made under the Planning Act?

No. You should carefully review section 28 of the Planning Act to determine whether you have a right of appeal to the Commission.

How long do I have to appeal a decision?

Your appeal MUST be received by the Commission within 21 days following the date of the decision.

Does the 21 day appeal period include Saturdays, Sundays and holidays?

Yes. Weekends and holidays are included in the calculation of the 21 day appeal period. As an example, if a decision you wish to appeal was made on the 1st day of the month, your signed and completed Notice of Appeal form must have been received by the Commission not later than the 22nd day of the same month. However, if the 21st day falls on a day on which the Commission's office is closed, subsection 23(3) of the Interpretation Act extends the deadline to the next day that the Commission's office is open.

How many days do I have to appeal if I only first find out about a decision a couple of weeks after it has been made?

The Planning Act requires that an appeal be filed within 21 days of the date of the decision. You may wish to review subsections 28(1) and 28(1.1) of the Planning Act and also section 23.1 of the Planning Act, which sets out the Notice requirements for decisions.

An example of a Commission Order considering the 21-day filing deadline is LA07-07.

Can I fax my completed Notice of Appeal form to the Commission?

Yes. The Commission's fax number is 902-566-4076.

Can I email my completed Notice of Appeal form to the Commission?

Yes, however you must ensure that the emailed form is signed. You may scan a signed Notice of Appeal and email the scanned version. If you email an unsigned but otherwise complete Notice of Appeal, you must afterwards follow up with a signed Notice of Appeal by fax, email or personal delivery.

Can I send my completed Notice of Appeal form to the Commission by ordinary mail?

Yes, but allow plenty of extra time for delivery. Do not rely on typical or usual delivery times. If you send your Notice of Appeal form to the Commission by ordinary mail, you must accept the risk that the Commission may not receive your Notice of Appeal within the 21 day appeal period and the Commission will then be unable to hear your appeal! If you are approaching the end of the 21 day appeal period, personal delivery or faxing your signed and completed Notice of Appeal form is crucial to preserve your right to appeal.

Can I appeal the bylaws or regulations themselves if I don't think that they are fair?

No. The Commission does not have the legal authority to change bylaws or regulations. The Commission's role is to determine whether the bylaws or regulations were correctly applied when the municipal council or the Minister made the decision.

10.

What are some common examples of decisions that I could appeal under the Planning Act?

Some examples of typical appeals include decisions to grant, or not to grant: a building or development permit, a rezoning request, preliminary approval of a subdivision, and variances from the bylaws or regulations.

11.

Can the government take away my right to appeal?

In certain situations where a development is approved under the Environmental Protection Act, the Lieutenant Governor in Council may curtail the right of appeal to the Commission in respect of that development. You should carefully review subsections 28(2) and 28(3) of the Planning Act for a detailed explanation.

12.

How much does it cost to file an appeal with the Commission?

There is no charge to file a Planning Act appeal with the Commission.

13.

Do I need to use the Commission's Notice of Appeal form when I file an appeal?

While not absolutely necessary, it is very helpful to use the Commission's Notice of Appeal. Using the form will help you to comply with the requirements for a notice of appeal set out in section 28 of the Planning Act.

A copy of the Notice of Appeal Form, in PDF format, can be obtained by clicking here.

14.

Do I need to give reasons for my appeal on the Notice of Appeal form? Do I need to state what I want the Commission to do if my appeal is granted?

Yes. Under subsection 28(5) of the Planning Act, a notice of appeal must be in writing and must state the grounds (reasons) for appeal and the relief (assistance or redress) that you seek from the Commission.

15.

Do I need to provide a copy of the Notice of Appeal to anyone else?

Yes. You are required, within seven days of filing an appeal with the Commission, to serve a copy of the notice of appeal on the council or the Minister, as the case may be.

16.

I have filed an appeal with the Commission but I would like to see if the other party and I could resolve our differences. Can the Commission help with this?

Yes. The Commission can provide a mediation process.

Mediation is an informal dispute resolution method in which a neutral person, the mediator, helps disputing parties to reach an agreement. All parties to a dispute must be willing to participate in the process, and the mediator has no power to impose a decision on the parties. If the Commission considers it appropriate to offer mediation services, it will check to see if the parties are interested in mediation. If the parties request mediation, a member of the Commission's staff will serve as the mediator. If the efforts at mediation are unsuccessful, the matter may still proceed to an appeal hearing before the Commission and the Commission's order will be binding. If you have questions about mediation, please feel free to contact Philip Rafuse, Appeals Administrator @ 902-892-3501 or PEI toll-free @ 1-800-501-6268. The Commission's postal address, fax number and related information can be accessed here.

17.

Do I need a lawyer to represent me on an appeal?

You are not required to have a lawyer on a Planning Act appeal. However, you are entitled to hire a lawyer to advise or represent you. You are responsible for paying your lawyer's fees.

The Canadian legal system recognizes that a person has the right to legal representation when appearing before a court or tribunal.

18.

How much time will it take for the Commission to hear my appeal?

The length of the appeal process varies depending upon several factors including:

the length of time it takes for the Commission to receive requested file information;
the complexity of the issues;
the availability of a hearing date for which all the parties are available; and
whether the parties request and agree on an abeyance, which effectively places the appeal process on "hold".

19.

If I file an appeal, will I get a copy of the other parties' documents?

Yes. Documents that are filed with the Commission by a party to an appeal are copied and distributed to the other parties on that appeal.

20.

Can I present photographs to the Commission as part of my evidence?

Yes. If possible, photographs shall be provided to the Commission with sufficient copies for all parties.

21.

How many copies of documents do I need to provide to the Commission?

For Planning Act appeals, the Commission requires 6 copies. Make sure you keep an additional copy for yourself.

22.

Are hearings before the Commission open to the public?

Yes. The public may attend the hearing, and Planning Act appeal hearings are usually advertised in a newspaper and are posted here on the Commission's website.

23.

Can a witness testify in private?

No. A witness presents his or her testimony at a public hearing.

24.

Are Commission hearings broadcasted?

Most Planning Act appeal hearings are broadcast on the web by the Commission.

25.

How long does a Planning Act appeal hearing last?

It depends on the matter. Some appeal hearings take less than a half day, while others may take a whole day. A very complex hearing may require several days.

26.

Can my appeal hearing be postponed?

Yes, with the approval of the Commission and for special reasons such as illness or severe weather. It is important to contact the Commission as soon as possible so that the other parties can be notified.

27.

Can I speak to, or send mail or email to, the Commission panel members for my appeal?

During the hearing, you may speak to the panel about relevant matters to your appeal. However, it is not appropriate to contact the Commission panel members outside the hearing room. This is to avoid any possibility of bias or impression of preferential treatment. You should contact Commission staff if you need assistance or have questions.

28.

The Commission heard my appeal a week ago and I just thought of something important to add concerning my appeal. Can I send a letter containing this information to the Commission?

No, unless the Commission requests written submissions or further information from the parties following the hearing, the Commission makes its decision based on the evidence and submissions presented at the hearing. It is important to carefully prepare for the hearing.

29.

How long will I have to wait for the written decision?

The wait period for the written decision following the conclusion of the hearing depends on the complexity of the matters under appeal and the Commission's schedule.

30.

Does the Commission make its decisions available to the public?

Yes. Planning Act appeal decisions (formally called "orders") are published here on the Commission's website.

31.

What can I do if I don't agree with the Commission's decision?

You can seek a review or appeal. Attached to the Commission's Order is a Notice explaining the procedure to follow.

The Notice reads as follows:

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 Court of Appeal upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Court of Appeal within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.

32.

I have heard of something called “jurisdiction”. What does jurisdiction mean and why is it important?

In a nutshell, the term "jurisdiction" refers to whether courts and tribunals (such as the Commission) have the legal power to hear and decide a particular appeal.

Some examples of Commission Orders considering jurisdictional matters are LA11-07, LA11-05, LA10-05, LA09-13, LA09-12, LA09-11- and LA07-07.

Section 28 of the Planning Act outlines the power and authority granted to the Commission to hear and decide an appeal under that Act.

33.

I applied for and received a permit for my development. Can I start my development right away, or should I wait?

Make sure you post your building, development, subdivision or other permit as required by the authority who issued the permit. You may start the project once you have received the permit. If you proceed while an appeal is still possible, you do however run the risk of suffering a loss if an appeal against your project is successful.

34.

Who can I contact?

If you have any questions concerning Planning Act appeals, please contact Philip Rafuse, Appeals Administrator @ 902-892-3501 or PEI toll-free @ 1-800-501-6268. The Commission's postal address, fax number and related information can be accessed here.

Last Reviewed or Updated : February 20, 2019