Order LA20-02 - Docket LA20003 - Planning Appeal - Andrea Battison
v. City of Charlottetown (September 22, 2020)
Click here for a PDF version of this Order.
IN THE MATTER of
an appeal by Andrea Battison, of a decision of the City
of Charlottetown, dated May 13, 2020, to adopt a Bylaw for a site specific
exemption in order to allow a nine storey dormitory/residence to be
constructed on the property of the University of Prince Edward Island.
BEFORE THE COMMISSION
on Tuesday, the 22nd day of September, 2020.
Scott MacKenzie, Q.C. Chair
M. Douglas Clow, Vice-Chair
Appearances & Witnesses
Reasons for Order
Appearances & Witnesses
1. For the Appellant,
2. For the Respondent, City of
David W. Hooley, Q.C.
3. For the Developer, University
of Prince Edward Island
Jonathan Coady, Q.C.
Reasons for Order
1. The Appellant, Andrea Battison
("Battison"), appeals a May 13, 2020 decision of the City of
Charlottetown (the "City") to adopt Bylaw PH-ZD.2-027, a Bylaw for a
site specific exemption in the Institutional (I) Zone of the Zoning &
Development Bylaw (the "Bylaw") for 550 University Avenue (PID #373126)
(the "Property") in order to allow the proposed nine storey (35.4m)
dormitory/residence to be constructed on the Property (the "Development"). This decision permits construction of a building on the
Property by the developer, the University of Prince Edward Island (the "University"), which otherwise exceeds the maximum building height
permitted in the City's Institutional (I) Zone.
2. Battison's primary argument
on appeal is that the public meeting procedure, adopted by the City in
response to the global COVID-19 pandemic and utilized for a public meeting
regarding the Development, does not meet the requirements of the City's
Bylaw or the Municipal Government Act (the "MGA").1
She further argues that a typographical error in the second of two
newspaper notices of the public meeting invalidates the meeting and,
therefore, the City's decision.
3. Battison also made
submissions which the Commission understood to suggest that she believes the
City's decision was inconsistent with sound planning principles.
4. The Commission denies
the appeal and confirms the City's decision.
5. The Commission finds that
the public meeting procedure adopted by the City in response to the onset of
the COVID-19 pandemic, including the notice requirements for the public
meeting held with respect to the Development, met the requirements of the
City's Bylaw, as well as all other statutory requirements.
6. As will be discussed,
Battison identified a single error with a registration date contained in the
second of two newspaper notices regarding the public meeting. In this
instance, a mere technical error, which did not strike at the heart of the
public notice and which could easily have been clarified by contacting the
City, is insufficient to invalidate what was otherwise proper notice.2
7. With respect to sound
planning principles, Ms. Battison did not provide any objective evidence to
establish that the City failed to adhere to sound planning principles.
8. On February 14,
2020 the University applied for a bylaw exemption for the "Southwest
corner of UPEI property, 550 University Avenue". The application
Construction of a new
residence building that will provide housing for the athletes for the 2023
Canada Games. It will also provide much needed housing for University
Efforts to Schedule Public
9. The application was
reviewed by the City's planning staff, the City's Planning Board and the
City's Council. On March 9, 2020, Council approved that the request proceed
to a public meeting.3
10. A public meeting was
initially scheduled for March 24, 2020. Public notice was issued in
accordance with the Bylaw.
11. Due to the onset of the
COVID-19 pandemic in mid-March, 2020, the public meeting was rescheduled to
March 30, 2020. Public notice was also issued for this meeting.
As a result of the directions of the Chief Public Health Officer for
PEI that meeting was cancelled.5
12. The City then set a new
public meeting date for April 28, 2020.6
Notice of the April 28, 2020
13. On April 18, 2020 and
April 25, 2020, the City published identical notices of the public meeting
in the Guardian newspaper.7
public notice specified that the City would be using a modified public
meeting procedure, set out options for public participation, and encouraged
City residents to contact City staff for further information.
14. With respect to the
available methods of participation, the notices stated:
Residents wishing to
participate may use any of these methods
Residents who just wish to
watch or listen without participation may do so by watching the live stream
15. For those wishing to
participate, the notices encouraged residents to contact the City Planning
Department on or before April 23, 2020 to provide their contact information.
City staff would then contact the interested parties no later than noon on
April 27, 2020 with participation details:
Residents who are
interested to participate in the public meeting are encouraged to contact
the Planning & Heritage Department by email at firstname.lastname@example.org or
call 902-629-4158 on or before 4:30 p.m. on Thursday, April 23, 2020 to
provide their contact details (Name, phone number and/or email address).
Business hours are between 8:00 AM - 4:30 PM, Monday - Friday. Staff will
contact interested participants no later than 12:00 p.m. on Monday, April
27, 2020 with the details on how to participate in the meeting.
16. The notices also invited
written submissions, with a deadline of April 30, 2020 at 12:00 p.m.
Public Meeting Procedure
17. The modified public meeting
procedure provided four opportunities to participate in and/or observe the
public meeting. Individuals could participate via WebEx video conference, by
telephone (with or without watching a livestream), attend in person and
participate using a computer on-site, or view a livestream audio and video
18. The modified public
meeting was held on April 28, 2020 at 6:00 p.m.
19. University staff and a
consultant presented at the public meeting. The public was invited to submit
questions and/or comments; however, none were submitted during the meeting.
Councillors asked a number of questions regarding the Development.8
The public presentation and question and answer component of the
meeting lasted approximately 35 minutes.9
20. Participants were also
advised at the public meeting that written submissions could be emailed to
City staff before noon on April 30, 2020.10
Recommendation and Council Approval
21. City planning department
staff recommended approval of the site-specific exemption.11
22. Planning Board considered
the application on May 4, 2020, agreed with the planning staff
recommendation, and recommended approval to Council.12
23. Council agreed with
Planning Board's recommendation. The application went before Council for
first reading on May 11, 2020. Second reading (and thus approval) of the
Bylaw exemption occurred on May 13, 2020.13
Appeal Procedural History
24. Battison filed a Notice of
Appeal with the Commission on June 2, 2020, within the statutory appeal
deadline as set out in the
25. A telephone pre-hearing
conference was held with Commission staff and the parties on June 16, 2020.
26. The Record was received on
June 22, 2020.15
27. Mediation was held July
13, 2020 but was unsuccessful.
28. The appeal was heard on
July 30, 2020, subject to the Commission's COVID-19 in-person hearing
29. Battison argues that
public engagement in the municipal decision-making process is an
essential requirement of the MGA, that the second public notice of the
April 28, 2020 public meeting did not meet they Bylaw notice
requirements, and that the public meeting was not acceptable as it did
not meet the standards of a 'traditional' (i.e. in-person) public
30. Battison did not give oral
testimony at the Commission hearing. Rather, she called two witnesses: her
spouse, Douglas Mills ("Mills"), and her friend, Joan Cumming ("Cumming").
Alleged Public Notice
31. Battison's argument with
respect to public notice is extremely narrow. In her view, the typographical
error in the second newspaper notice published April 25, 2018, which
encourages residents to contact the City on or before April 23, 2020,17
to register for the public meeting, invalidates the notice and thus
the public meeting and City decision.
This argument is not persuasive.
32. The City, for its part,
concedes its error, but states that no resident was turned away from the
meeting. The University argues that the error was technical, not material,
and did not affect the outcome of the process.
33. With respect to the public
notice, the Commission heard not from Battison, but rather Mills and Cumming
with respect to what impact, if any, the typographical error had on their
attendance at the public meeting.
34. Mills testified that he
did not see the Guardian notice on April 18, 2020, but he did read the
Guardian notice on April 25, 2020. He testified that by then it was too late
to contact the City as, in his mind, the notice gave a deadline of April 23,
2020. He did not attempt to contact City staff. He also speculated that the
meeting would be cancelled as people were expected to stay indoors and not
allowed to go to functions due to the COVID-19 public health emergency.
35. Cumming testified that she
has electronic access to the Guardian newspaper but does not get a printed
copy. She stated that her internet was slow due to increased web traffic due
to COVID-19, and depended on CBC Compass for the news. She would receive
notice of public meetings from discussions with Battison, a long-time
friend. She did not participate in the public meeting as she was busy
operating her student/tourism rental business.
36. Greg Morrison ("Morrison")
is a planner in the City's planning department. He was responsible for
processing the University's application. Morrison testified that the purpose
of the April 23, 2020 date in the public notice was to have members of the
public contact the City so it could provide individuals with training to use
Webex and become accustomed to the modified meeting process. The City
continued to operate during the COVID-19 pandemic, and individuals could
have called the City for further information regarding the public meeting,
even after April 23, 2020. Alex Forbes ("Forbes") is the Manager of Planning
for the City. He testified that the registration component of the public
notice was to permit the City to prepare for the public meeting and comply
with social distancing requirements.
37. Section 3.10.4 of the
Bylaw sets out the notification requirements that the City must follow for a
public meeting. The Record and testimony before the Commission establishes
that the City met those requirements. Notice was published twice in a local
newspaper. It contained all of the content prescribed by the Bylaw. For
instance, the notice identified the subject lot, described the application,
and provided a deadline for written comments.18
38. There is no evidence
before the Commission that anyone was denied the opportunity to participate
in the public meeting as a result of the erroneous registration date in the
second newspaper notice. The newspaper notice encouraged, but did not
mandate, registration. Neither of the witnesses called by Battison made any
efforts to contact the City. The registration procedure was not a statutory
requirement. The notice complied with all the procedural obligations of the
Planning Act, MGA, and City bylaws.
39. The Commission is
satisfied that the registration date error in the April 25, 2020 newspaper
notice was a technical defect. This has been conceded by the City. However,
the error was not material. Morrison testified that no one was turned away
from the public meeting. There is no evidence to suggest otherwise. The
error was immaterial and does not invalidate the public meeting notice or
Public Meeting Process
40. Battison made further
arguments taking issue with the form of meeting undertaken by the City. She
argued that the public meeting was limited only to those with "technical
resources" and that there needs to be a public meeting where all interested
public can attend. In support of her argument, Battison again relied on the
testimony of Mills and Cumming.
41. Mills testified that the
'traditional' in-person meeting is the only form of meeting he is familiar
with, he does not use email, uses a "flip-phone", and finds technology
difficult. He also testified that he did not want to use the telephone, did
not want to be put on hold, and he preferred an in-person meeting. Mills did
not participate in the public meeting.
42. For her part, Cumming
testified that she has attended many public meetings in the past, but was
not as active in her attendance as she used to be. She testified that she
has problems using technology.
She was suspicious of "apps", concerned for computer security and thus would
not download "apps" such as Webex.
She testified that she did not want to leave her home during this
time and only went outside if it were "life and death". Cumming did not
participate in the public meeting.
43. The Commission cannot
accept Battison's argument with respect to the public meeting process
developed and executed by the City. The testimony of Mills and Cumming was
unhelpful and did not assist Battison in this regard. The Commission is
satisfied that the City met its Bylaw obligations,19
as well as the electronic meeting requirements of the MGA20
and the City's procedural bylaw regarding electronic meetings.
44. Counsel for the University
accurately summarized the relationship between the
Planning Act, the MGA,
and the relevant city Bylaws, being the Bylaw and its procedural bylaw.
Section 122 of the MGA addresses electronic meetings of council. In effect,
it requires councillors to speak and hear. It requires members of the public
to see and hear. The City's procedural bylaw mimics these requirements.21
The Record is clear that the requirements for the City to conduct the
public meeting electronically were met.22
45. The Record and testimony
of City staff makes this abundantly clear. The public meeting had an
in-person component.23 The City's
Parkdale room was equipped with large television screens for individuals to
view while maintaining social distancing. In addition, areas on the first
floor and foyer were prepared to accommodate in-person attendance if
required. A computer was set up
for in-person participation. Individuals could also participate using the
Webex platform or by telephone. They could also watch the City's live
stream, and send in written comments after the meeting.24
Not only could individuals "see and hear", they could actively
participate. Questions were permitted and could be asked in not less than
three ways: via Webex, telephone, or a physical computer at the meeting
46. The Commission finds the
City's modified public meeting process met, and exceeded, the relevant
statutory obligations. In fact, the various forms of participation offered
by the City went above and beyond the minimum requirements of the
applicable bylaws.26 It also
complied with the existing Public Health Order in effect at the time, which
limited - but permitted - public gatherings of up to five people.
47. The COVID-19 pandemic has
upended life for all Islanders. What was business-as-usual before is no
longer. Yesterday's public meeting is not today's, or tomorrow's. What
remains constant is the need for public bodies, such as the City, to provide
services to its residents. In this instance, the Commission is satisfied
that the City not only met its statutory obligations in hosting the April
28, 2020 public meeting, but did so commendably.
48. The Commission recognizes
that Battison may not feel that the requirements of the MGA or the City's
Bylaws are sufficient to address her concerns. However the appropriate forum
for Battison to raise these concerns is not the Commission. Rather, the
appropriate remedy is for Battison to lobby for changes to the MGA or the
City's bylaws. Policy submissions belong not in the Commission hearing room,
but rather on the floor of the legislature or the City Council Chamber.27
Sound Planning Principles
49. Although not specifically
referenced in her grounds of appeal,28
A number of comments by Battison and contained within the Record
suggest to the Commission that she believes that the City's decision is
inconsistent with sound planning principles. For instance, Battison
questioned why the Development was not subjected to design review.
The Development is not a property that is subject to the design
review process under the Bylaw.29
She also raised concerns about the height of the Development, and that it
may create a precedent for other buildings in the immediate area.30
50. The Commission has
repeatedly emphasized the need for appellants, seeking to have the
Commission overturn a well-reasoned municipal decision on the basis of sound
planning principles, to bring forward objective and reliable evidence to
support their position:
The Commission is generally
reluctant to interfere with a decision of a municipality on the basis that
it is not consistent with sound planning principles, where that decision is
supported by objective and reliable evidence from planning professionals
confirming that the decision is based on the Planning Act, the applicable
official plan and bylaw, and sound planning principles. It is
incumbent upon an appellant to bring forward objective and reliable evidence
to the contrary. In other words, where sound planning principles are at
issue, it is prudent to call evidence from a planning professional or a
person with experience in making planning-related decisions. More than the
subjective concerns expressed by neighbouring property owners is required.31
51. Appellants cannot expect
that they will be successful in challenging decisions of municipal or
provincial planning authorities, where the decision-maker has availed itself
of planning expertise and provided sound reasons for its decision, absent
evidence to the contrary. Subjective complaints, without more, are
insufficient to overturn proper, reasoned municipal planning decisions.
52. The Commission finds that there
is adequate support in the Record for the Development. Planning Board
accepted City planning staff's recommendation to approve the University's
application. Council accepted Planning Board's recommendation to do the
same.32 There is no expert
evidence before the Commission to challenge Morrison's evidence. The
Commission is satisfied that the City's decision is consistent with sound
53. The appeal is denied. The City's decision
of May 13, 2020 is confirmed.
Municipal Government Act R.S.P.E.I. 1988, Cap. M-12.1 . See in
particular Part 5, Division 1.
2 For further discussion of technical
deficiencies being insufficient to invalidate otherwise sound municipal
decisions, see decision of the Commission in Queens County Condominium
Corporation No. 40 (Order
3 Record, Vol.
1, Tab 6.
Record, Vol. 1, Tab 8.
7 The City also issued
notification letters to property owners located within 100 metres of the
Property and posted an announcement on the City's website. See Record,
Vol.1, Tab 8.
8 Record, Tab 11.
10 Verbatim Minutes of
Public Meeting. Record, Tab 11.
Record, Tab 12.
12 Record, Tab 13.
13 Record, Tabs 14, 15, and 17.
14 RSPEI 1988, c P-8, s.28(1.3).
15 Via email. paper copies provided
to the Commission on June 24, 2020.
16 Available on the Commission
website at www.irac.pe.ca. The
hearing was broadcast publicly on the Commission's website.
17 i.e. two
days prior to the notice's publication date.
18 This notice also met
the requirements of subsection 18(10) of the
Planning Act, RSPEI 1988, c
P-8, which required that the notice be published in a local newspaper at
least seven clear days in advance of the meeting and indicate "n
general terms the nature of the proposed bylaw and the date, time and
place of the council meeting".
20 MGA, s.122.
21 Procedural Bylaw, s.13.3.
University Written Submission, July 7, 2020.
component was also clearly set out as being available in the public
24Testimony of A. Forbes. See also Record at Tab 12. Four
letters of opposition and four letters of support were submitted,
including correspondence from Battison.
25 Record, Tab 11. That no
questions were asked by the public does not take away from the fact that
the opportunity was provided.
26 And satisfied the City's
Act obligations to give residents and other interested persons the
opportunity to make representations. See
Planning Act, s.18(10)(a).
27 Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 (CanLII) at
28As set out in the Notice of Appeal.
29 Bylaw, s.3.14.
30 Record, Vol.III, Tab 121.
31 Queens County Condominium
Corporation No. 40 v. City of Charlottetown (Order LA18-02) at para.41.
32 Record, Vol.1, Tabs 3, 12 & 13.
Appellant Andrea Battison appealed a decision of the City of
Charlottetown, granting a site specific exemption in the
Institutional (I) Zone of the Zoning & Development Bylaw pertaining
to 550 University Avenue (PID #373126) (the "Property"), dated May
the Commission heard the appeal on July 30, 2020;
IT IS ORDERED THAT
1. The appeal is
2. The City's May 13,
2020 decision pertaining to the Property is confirmed.
DATED at Charlottetown, Prince Edward Island,
this 22nd day of September, 2020.
BY THE COMMISSION:
J. Scott MacKenzie, Q.C., Chair
M. Douglas Clow, Vice-Chair
Erin T. Mitchell, 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.