Appearances & Witnesses
Reasons for Order
of the Bylaw
Used car sales established is not a
permitted use in the Municpality's C1 zone
The Appellant's Position
The Commission's Interpretation
Water and sewer hookup is required in the C1 zone
Other Issues Raised
by the Appellant
Completeness of the Record
Allegation of Bias
Appearances & Witnesses
1. For the Appellants,
Representative: Bill Drost
2. For the Respondent, Resort
Jonathan M. Coady
Stewart McKelvey, Barristers &
Reasons for Order
This is an appeal by a developer of a July 16, 2018 decision of the Resort Municipality (the
"Municipality") to deny an application to develop a used car sales
establishment to be located in the Municipality's commercial C1 Zone.
The Appellant, Smooth-Coat Drywall Ltd. (the "Appellant"), represented
by Bill Drost ("Drost"), asks that the Commission overturn the
Municipality's decision and approve its application, albeit without the
need for water and sewer hookup. The Appellant argues that the
Municipality misinterpreted its Zoning and Subdivision Control
(Development) Bylaw (the "Bylaw"), was biased, and failed to provide
full and complete disclosure to both it and the Commission.
2. The Commission finds that the
Municipality properly interpreted the Bylaw in denying the Development
Permit Application (the "Application"). Upon a thorough review of the
written submissions, appeal record, and oral submissions of the parties
at a preliminary hearing, the Commission also finds that the Appellant's
allegations of bias and incomplete disclosure are unfounded.
3. On June 28, 2018, Drost wrote
the Chief Administrative Officer of the Municipality (the "CAO")
requesting a letter from the Municipality in support of a proposed
automobile sales location within the Municipality at parcel
PID#92593 (the "Property"). Drost advised that he had entered into a
lease with the Property owner, Phillip Gallant ("Gallant"). Drost
stated that he intended to "keep up to 20 vehicles on the property
for sale" and that no mechanical work would be performed at the
4. On July 4, 2018, the Appellant
submitted the Application, identifying the type of development as the
"establishment of used car sales", at a property located on the west side of
Route 6, between PID 706150 and Four Winds Lane2.
The Application proposed to move a 10' X 12' building onto the
Property to serve as an office. With respect to water and sewerage services,
the Appellant marked "na" and "n/a", respectively3.
5. On July 11, 2018, the Application
was considered and denied by the Municipality's planning board (the
"Board").4 The Board meeting
minutes indicate that the Application was denied "based on the fact that it
is not a permitted use under the C1 zone".5
6. On July 16, 2018, the council of
the Municipality (the "Council") denied the Application on the basis that it
"is not a permitted use under the C1 zone".6
7. On July 17, 2018, a decision
letter was issued by the Municipality to Gallant, stating in part: "The
property in which you wish to locate a used car sales lot is located in the
C1 Zone. The current C1 zone does not allow for a used car sales lot". The
Municipality relied on section 10 of the Bylaw.7
8. On August 6, 2018, Drost, on
behalf of the Appellant, appealed the Municipality's decision to the
Commission. The Notice of Appeal alleged that the Municipality erred in
interpreting the Bylaw and requested that the Commission reverse the
Municipality's decision and approve the Application "without the requirement
to connect water and sewer to the sales office building".8
9. On August 22, 2018, the
Municipality filed the Appeal Record with the Commission.9
Following a request for additional disclosure by the
Municipality filed a Supplementary Appeal Record on August 27, 2018
(together, the "Record").10
10. Upon review of the Notice of
Appeal and the Record, the Commission was satisfied that the stated grounds
of appeal raised matters of legal interpretation, as opposed to matters of
both fact and law. As such, the Commission invited the parties to make
written submissions with respect to the proper interpretation of the
Municipality's Bylaw as it relates to the Application.11
Both parties were afforded the opportunity to file written
submissions, including a reply.
11. On September 7, 2018, the
parties filed their written submissions with the Commission.12
On September 14, 2018, the parties filed reply submissions.13
Upon review of the parties' submissions, the Commission determined
that a preliminary hearing was necessary to address allegations of bias and
non-disclosure raised by the Appellant. The preliminary hearing was held
before a full Commission panel on December 13, 2018. Lengthy oral
submissions were made by both parties with respect to the allegations. As a
result, the Appellant was directed to file a submission listing the bases
for the allegations of bias, as well as the evidence it was seeking to
compel from the Municipality, and an explanation of its relevance to the
matter under appeal. Drost filed this submission on January 11, 2019.14
The Municipality filed its reply on January 31, 2019.15
12. The Primary issue in this
13. The Appellant also raises three
secondary arguments, including:
whether water and sewer hookup
is required in the C1 Zone;
an allegation of bias on the
part of the Municipality in denying the Application; and
an allegation that the Record
filed by the Municipality with the Commission is incomplete.
Interpretation of the Bylaw
14. This appeal is primarily a
matter of Bylaw interpretation. The parties have each had the
opportunity to file written submissions and replies on the proper
interpretation of the Bylaw in the circumstances of this appeal. They
have also had the opportunity to address the Appellant's assertions of
bias and non-disclosure both orally at the preliminary hearing and again
in post-hearing written submissions. In the circumstances, the
Commission is satisfied that a full oral hearing is not required to
dispose of this appeal.16
sales establishment is not a permitted use in the Municipality's C1 zone
15. The primary issue before the
Commission is whether a used car sales business is a permitted use
within the C1 zone. Section
10.2 lists various permitted uses within the C1 zone.
The Municipality contends that a used car sales business is not a
permitted use under section 10.2.
The Appellant contends that a used car sales business is a
permitted use under section 10.2(1) "Retail Stores, Service Shops and
Personal Service Shops".
16. The Municipality submitted
that a used car sales business does not meet the section 2.90 Bylaw
definition of "Retail Store" as the automobiles offered for sale would
not be in any building or structure.
The Municipality submitted that a used car sales business falls
squarely within the section 2.7 Bylaw definition of "Automobile Sales
and Service Establishment" which reads:
2.7 "Automobile Sales and
Service Establishment" - means a Building or part of a building or a clearly
defined space on a Lot used for the sale and maintenance of used or new
17. The Municipality submitted that
the Bylaw distinguishes between "servicing and repairing" of automobiles in
section 2.8 and "sale and maintenance" of automobiles in section 2.7.
The Municipality submitted that the use of a different word is
intended to convey a different meaning.
The Municipality submitted that one common meaning of the word
"maintenance" is to preserve, continue or keep up an activity, namely the
preservation, continuation or keeping of an inventory of used or new
18. The Municipality also cites and
discussed various rules of statutory interpretation to support its position.
19. The Municipality also submitted
that the Appellant sought a permit for a use that is expressly defined in
the Bylaw while that use is not listed as a permitted use under section
10.2. The Municipality submitted
that, to be consistent with the Commission's decision in Order
Jonathan Callbeck v. Town of North Rustico, it cannot approve a defined use
that is not listed as a permitted use in the C1 zone.
There is no authorization in the Official Plan for an automobile
sales business in the C1 zone.
The Bylaw is the applicable and operational document for this matter.
20. The Municipality noted that the
Wikipedia definition of "maintenance" relied upon by the Appellant is
actually the definition for "service (motor vehicle)" and not the word
21. The Municipality further noted
that the section 2.90 Bylaw definition of "Retail Store" does not include "a
clearly defined space on a Lot used for" the offering or keeping for sale of
22. The Appellant submitted that
the Municipality's Official Plan does not prohibit motor vehicle sales
businesses and encourages new high quality development.
The Appellant stated that there are no auto sales businesses in
the Municipality other than occasional "curb siding" auto sales.
23. The Appellant submitted that the
proposed used car sales business would be a retail business with a small
office. It would not be solely
focused on the seasonal tourism market and would be located outside of the
Resort Core Area.
24. The Appellant cited a definition
of the word "maintenance" as it applies to automobiles as a "... series of
maintenance procedures carried out at a set time interval or after the
vehicle has travelled a certain distance."
The section 2.7 definition of an Automobile Sales and Service
Establishment requires both "sale and maintenance".
Any maintenance required will be performed off-site.
As only the retail sales of automobiles will be conducted, the
definition of "Retail Store" in section 2.90 is more appropriate as
automobiles are "articles" and "things" that the Appellant wishes to sell to
the public at retail.
25. The Appellant stated that some
of the necessary goods and wares, such as keys, ownership documents,
advertising materials, customer files, warranty programs and more will be
sold inside the office building.
Most of the sales activity will be conducted inside the building.
The Appellant noted that some retail sales commonly occur outside
retail buildings in the Municipality and provided examples of this practice.
26. The Appellant submitted that the
generic use of the word "maintenance" is not appropriate given that only
section 2.7 refers to this word and thus it applies specifically to the act
of performing repairs to automobiles.
27. The Commission finds that
the section 2.7 definition of Automobile Sales and Service Establishment
more closely reflects an automobile sales business than the section 2.90
definition of Retail Store as the primary good to be sold, the
automobile, will not be offered or kept for sale within the proposed
28. While the word "maintenance" has
many meanings; the preservation, continuation or keeping of an inventory of
automobiles is a reasonable and appropriate meaning of the term in the
context of automobile sales and assists in distinguishing between an ongoing
automobile sales business such as proposed by the Appellant versus the
"curb-side" or private sale of used automobiles.
29. As "Automobile Sales and
Service" is not listed among the permitted uses set out in section 10.2 of
the Bylaw, the Commission finds that a used car sales business is not a
permitted use within the C1 zone.
30. Although the Commission is
satisfied that the Municipality properly interpreted and applied its Bylaw
in denying the Application, it will, for completeness, address the secondary
arguments raised by the Appellant.
sewer hookup is required in the C1 zone
31. The Appellant asks the
Commission to reverse Council's decision and approve the development
permit "without the requirement to connect water and sewer to the sales
office building."17 The
Municipality argues that section 10.8 of the Bylaw requires all
developments within the C1 Zone to be serviced by a Central Sewer system
(where available) or, alternatively, by an on-site sewage treatment
system approved by the Province. It argues that the Bylaw is clear,
these services are mandatory, and the Commission, like the Municipality,
is bound to apply the Bylaw as written.
32. The Commission agrees with the
Municipality. The relief sought by the Appellant - that being an order that
water and sewer hookup is not required - is not within the Commission's
jurisdiction to grant. The Commission is a statutory body exercising
statutory authority conferred on it under the
The Commission, like the Municipality, must interpret and apply the
Bylaw as drafted. The Commission does not have the authority to order
something that is not permitted by the Bylaw.19
Section 10.8 of the Bylaw clearly requires that a provincially
approved on-site sewage treatment system be installed on the Property.
Other Issues Raised by the
Completeness of the Record
33. In its written submissions
to the Commission, the Appellant argues that the Municipality had not
provided him or the Commission with full and complete disclosure. It
also sought to compel testimony from various municipal officials. This
issue was thoroughly canvassed at the preliminary hearing, and the
Appellant was afforded the opportunity to provide the Commission with a
list of the records he alleged were missing, along with an explanation
of their relevance to the appeal. Among other things, the Appellant
seeks planning board meeting minutes from July, 2015 onwards, the audio
recording of the July 16, 2018 Council meeting, and various email
correspondence between councillors and the Municipality's CAO.
34. Documents pertaining to other
unrelated applications do not form part of the Record.
Audio recordings do not form a part of the Record when the sole
purpose of such recordings is to assist a municipality in preparing official
minutes. Those official minutes,
however, do form an essential part of the Record.
35. The Record commences with the
filing of a specific application and concludes with the issuance of an
appealable decision. In some
cases, the Record may be extended to include a specific previous application
directly pertaining to the same matter.
36. The Commission accepts that the
Record is complete. A bare assertion that a municipality is failing to
provide full disclosure and therefore is �misleading' the Commission is a
serious allegation that requires cogent evidence. Such evidence does not
exist in this appeal and the Commission finds that this allegation is
entirely without merit.
37. The Appellant alleges that
in failing to provide full and complete disclosure (which the Commission
finds has not been established), the Municipality was "misleading" the
Commission, and that the disclosure of "partial and therefore misleading
information" established bias.20
The Appellant also argues that prior, unrelated decisions of the
Municipality offer evidence of this bias, in that the Municipality has
inconsistently applied the Bylaw and is denying the Appellant what it
has otherwise approved for others. Following the preliminary hearing,
the Appellant provided the Commission with ten examples of previous
Council decisions the Appellant suggested were in support of its
38. In response, the Municipality
argues that inconsistency and bias are two distinct and separate issues. The
Municipality also argues that past decisions of Council are not only
irrelevant to this appeal but also do not demonstrate a pattern of
inconsistent decision making or bias, as alleged by the Appellant.
39. Having reviewed the parties'
submissions on this issue, the Commission finds that this serious allegation
is unfounded. The Commission has already addressed the disclosure issue,
which in and of itself has no bearing on the Appellant's allegation of bias.
40. It may be that the Appellant is
conflating or otherwise confusing the legal determination of bias in the
municipal context with suggested inconsistencies in decision-making by a
municipal council. As counsel for the Municipality correctly points out, the
Appellant must persuade the Commission that the Municipality closed its mind
to the Application.21 It has not done
so. The evidentiary threshold is high and the burden rests on the Appellant.
On this matter the Appellant has not provided any evidence to substantiate
the allegation and satisfy the legal test for bias.
41. The ten examples of decisions
referenced by the Appellant share a common theme; they are development
permits that do not state a specific requirement to connect to water and
sewer. The Appellant takes the
position that the Municipality has insisted upon a water and sewer hookup
for his proposed development and such position is inconsistent with these
ten examples of other permitted developments.
42. A development permit authorizes
the construction of a development, usually a building, based on an
application, buildings plans or other filed documentation.
A development permit does not need to specify or list the numerous
applicable bylaw requirements.
Compliance with the law in general and applicable bylaw requirements in
particular is implicit in the granting of a development permit.
Development permits usually go even further and specify that the
permit is subject to compliance with the provisions of a named bylaw.
43. Thus, the fact that numerous
development permits do not, on the face of the permit, state a requirement
to connect to water and sewer does not establish inconsistency with the
Municipality's water and sewer requirements.
44. Even when inconsistency has been
established, inconsistency is not bias. Past decisions of the Municipality
are not relevant to the Application or this appeal. They certainly do not,
at least in this appeal, establish bias. The Municipality was required to
consider the Application individually and on its own merits. Upon a thorough
review of the Record, the Commission accepts that the Municipality did just
Commission is satisfied that the Municipality properly interpreted
its Bylaw in denying the Application. The allegations of incomplete
disclosure and bias are unfounded. The appeal is denied and the
decision of the Municipality is hereby affirmed.
correspondence from B. Drost to email@example.com
- Appeal Record, p.1.
Permit Application - Appeal Record, p.2.
Permit Application - Appeal Record, p.3.
Board Meeting Minutes dated July 11, 2018 - Appeal Record,
Board Meeting Minutes dated July 11, 2018 - Appeal Record,
Meeting Minutes dated July 16, 2018 - Appeal Record, p.30.
from B. MacDonald to P. Gallant dated July 17, 2018 - Appeal
of Appeal filed August 6, 2018 - Appeal Record, p.53.
from the Commission dated August 23, 2018.
Submissions filed September
Submissions filed September
filed September 14, 2018; Municipality Rebuttal Submissions filed
September 14, 2018.
Submissions Following Pre-Hearing Conference filed January 11, 2019.
Reply to Submissions Following Pre-Hearing Conference filed January
correspondence to the Commission's appeals administrator, Drost has
repeatedly asked for a disposition of the appeal
in his favour, or, alternatively, a full
oral hearing. The Commission is the master of its own procedure. It
has provided both parties with the opportunity to make written
submissions (both before and after the preliminary hearing) as well
as oral submissions at a lengthy preliminary hearing.
1988, c P-8.
the Appellant does not suggest that section 10.8 of the Bylaw is
ultra vires the Municipality or otherwise contrary to the
20Appellant Rebuttal Submissions field Septempber 14,
St. Boniface Residents Assn. Inc. v. Winnipeg (City),  3
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
IT IS ORDERED THAT:
1. The appeal is denied.
at Charlottetown, Prince Edward Island, Friday, July 5 , 2019.
BY THE COMMISSION:
J. Scott MacKenzie, Q.C., Chair
John Broderick, Commissioner
Jean Tingley, Commissioner
Section 12 of the
Island Regulatory and Appeals Commission Act
reads as follows:
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.
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
(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 rules of court respecting appeals apply with
the necessary changes.