LA99016, LA99018, LA99019, LA99020 and LA99024
THE MATTER of certain appeals filed by Arthur Jennings, et al.
against decisions by the Municipal Council of the City of Charlottetown, dated July 26 and
28, 1999 and by the Minister of Community Services and Attorney General, dated August 25,
BEFORE THE COMMISSION
on Tuesday, the 11th day of January, 2000.
Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Appearances & Witnesses
Reasons for Order
Appearances & Witnesses
1. For The
Board of Governors of St. Dunstan's University, represented by Alan C. Cheverie,
Superior Properties & Rentals Inc. and Superior Sanitation Services Inc., represented
by John K. Mitchell, Q.C., Legal Counsel
D. Ron Burke
2. For The Respondents
The City of Charlottetown
David W. Hooley, Q.C.
The Minister of Community Services and Attorney General
Les J. Zielinski
Reasons for Order
The Appellants in this matter
have appealed under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap.
The Appellants are:
Arthur Jennings - identified as Appeal LA99016;
Philip Wood - identified as Appeal LA99018;
Board of Governors of St. Dunstan's University - identified as LA99019;
Superior Properties and Rentals Inc. Superior Sanitation Services Inc - identified as
D. Ron Burke - identified as LA99024.
The Appellants are appealing a July 26, 1999 decision by the Municipal
Council of the City of Charlottetown (the City) to adopt the City of Charlottetown
Official Plan (the Official Plan) and further decisions by the City on July 26, 1999
(first and second reading) and July 28, 1999 (third reading) to pass the City of
Charlottetown Zoning and Development Bylaw (the Bylaw). The Appellants are also appealing
decisions subsequently made by the Minister of Community Services and Attorney General
(the Minister) on August 25, 1999 to approve the Bylaw and the Official Plan. The
Appellants are seeking an order from the Commission to quash the decisions by the City and
the Minister and declare the City's Official Plan and Bylaw to be null and void.
By letter, dated August 18, 1999, the City raised a preliminary matter
contending that the Island Regulatory and Appeals Commission (the Commission) does not
have jurisdiction to hear an appeal pursuant to Section 28 of the Planning Act,
regarding the adoption by the City of an Official Plan and Bylaw. The Commission decided
to deal with the preliminary issue of the question of jurisdiction before moving to the
merits of the intended appeals.
With the concurrence of all parties, written pre-hearing submissions on
the preliminary matter were filed with the Commission. The Commission held a hearing on
December 22, 1999 to hear oral submissions from all parties on the preliminary matter.
For administrative purposes the hearings for the appeals filed by the
Appellants in this matter have been consolidated.
Arguments advanced by the Appellants
The Appellants, for reasons set out in their submissions to the
Commission, contend that the Commission has appellate jurisdiction to hear their appeals.
Central to the position of the Appellants are the following:
The Commission has the jurisdiction to deal with land use issues as prescribed by the
provisions contained in the Island Regulatory and Appeals Commission Act,
R.S.P.E.I. 1988 Cap. I-11. and the Objects as contained in the Planning Act.
The Objects of the Planning Act and the provisions of the Island
Regulatory and Appeals Commission Act are best obtained by giving a fair, large
and liberal interpretation to the Commission's jurisdiction as prescribed by the Interpretation
Act R.S.P.E.I. 1988, Cap.I-8.
Given the nature of the problem and the Commission's expertise, the Commission is
the proper forum for such matters to be heard.
The Official Plan and Bylaw in question are effectively amendments to those official
plans and bylaws which previously existed in the former municipalities which now make up
the City of Charlottetown. The Commission has, in the past, found that it has jurisdiction
to hear appeals concerning amendments.
The process undertaken by Council and the Minister to make and adopt the Bylaw and
Official Plan must be viewed as decisions in respect of the administration of bylaws or
regulations which are appealable decisions under the provisions of Section 28 of the Planning
Arguments advanced by the Respondents
The Respondents, for reasons set out in their submissions to the
Commission, take a contrary position to that of the Appellants and contend that the
Commission does not have jurisdiction to hear these appeals.
Key points argued by the Respondents are the following:
The City's position is that whereas, previous to 1994, the Commission had the
authority under the Planning Act and the Island Regulatory and Appeals
Commission Act to approve official plans and amendments thereto, these powers were
subsequently removed by the Legislature and vested in the Minister.1
The Commission no longer has the power or jurisdiction under either Act to
make any determination in relation to the validity of official plans adopted by Island
municipalities under the provisions of the Planning Act. Therefore, the
Commission has no jurisdiction to hear the Appellants' appeals.
The City also contends that the Commission's statutory jurisdiction to deal with
appeals under the Planning Act is both established by and
limited by the provisions of Section 28 of the Planning Act.
This section limits appeals to decisions involving "
the administration of
regulations or bylaws made pursuant to the powers conferred by this Act
The City takes the position that the adoption by the City of the Official Plan and the
passing of the Bylaws are not decisions in respect of the "administration of
regulations or bylaws".
The Minister relies on a previous decision of the Commission, Order LA98-02, Gary
Paynter v. Minister of Community Affairs and Attorney General, in which the
Commission decided that the decision of the Minister to approve a Bylaw amendment was not
a decision within the administration of the regulations and therefore not appealable under
Section 28 of the Planning Act. The Minister contends that when the
Commission had the authority to approve Official Plans, its decision was subject to review
by the Courts. With the removal of the Commission and the substitution of the Minister as
the approving authority, the related amendments to the Planning Act and the Island
Regulatory and Appeals Commission Act did not confer a right of appeal of the
Minister's decision on the Commission a right of review continues to rest with
As the Commission has often
stated, it is a creature of statute with the powers and jurisdiction prescribed by
statute. In this case, the Commission's powers are derived from the Planning
Act and the Island Regulatory and Appeals Commission Act.
The Commission's jurisdiction in appeals under the Planning
Act is set out in subsection 28(1), which states:
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.
The question before the
Commission in the preliminary matter is whether the following decisions are of the nature
contemplated under the provisions of subsection 28(1) of the Planning Act
and, thereby, subject to appeal under the Planning Act.
The City's decision to adopt the Official Plan.
The City's decision to pass the Bylaw.
The Minister's decision to approve the Official Plan.
The Minister's decision to approve the Bylaw.
The Commission is restricted to appeals which are filed by a person who
is dissatisfied with a decision of a Council in the administration of bylaws made pursuant
to the powers conferred by the Planning Act, or a decision of the Minister
in the administration of the regulations made pursuant to the powers conferred by the Planning
The City's Decisions
With the foregoing in mind, the Commission must first determine
under what authority the City made its decisions on July 26 and July 28, 1999 to give
first, second and third readings to pass the Bylaw and its July 26, 1999 decision to adopt
the Official Plan.
The authority for the City to adopt an official plan is found in the
provisions of the Planning Act, specifically Sections 11 through 14, which
set out a process for holding public meetings, maintaining a public record, the contents
of the official plan and the approval process.
The provisions for making bylaws are found in Sections 16 through 20 of
the Planning Act, including such matters as the requirement
for public meetings and the approval process.
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 Planning Act.
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 Planning
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
In arriving at its decision, the Commission examined, among other
things, the law which existed prior to amalgamation and the transitional provisions which
bridged the old official plans and bylaws of the former municipalities with the new
The Charlottetown Municipalities Act R.S.P.E.I. 1988,
Cap. C-4.1 gives some guidance in this matter wherein Schedule 3, subsection 2(d) sets out
the transitional provisions for the City of Charlottetown, including the provision that
all bylaws made and having effect
shall continue to have effect until they are
revoked or others are made in their stead.
According to the documents filed by the City, on July 26, 1999 the City
Council passed a resolution that the City of Charlottetown
adopt the City of
Charlottetown Official Plan dated July 1999 and repeal the existing Official Plans as
Charlottetown Development Plan
East Royalty Official Plan
Hillsborough Park Official Plan
Sherwood Official Plan
West Royalty Official Plan
Winsloe Official Plan
Parkdale Official Plan
effective the date of Ministerial approval of the Zoning and
On July 28, 1999 the City passed a resolution to approve the City
of Charlottetown Zoning and Development Bylaw. Contained within the Bylaw are the
provisions of subsection 1.2 which states that the provisions of the bylaws in the former
municipalities which now comprise Charlottetown, are hereby repealed.
On August 25, 1999 the Minister of Community Services and Attorney
General approved pursuant to Section 14 of the Planning Act, the Official
Plan and pursuant to Section 17 of the Planning Act, the Bylaw.
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
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.
The Minister's Decisions
The Minister's decisions to approve the Official Plan and
Bylaw were made respectively pursuant to subsection 14(2) and Section 17 the Planning
Subsection 14(2) states:
14(2) Following the adoption of the official plan by the Council, the plan
(b) shall be submitted to the Minister for approval
Section 17 states:
17 The bylaws shall be subject to the approval of the Minister and shall be
effective on the date of approval by the Minister.
The Commission finds that the
decisions by the Minister were not made in the administration of the regulations of the Planning
Act, rather they were made pursuant to subsection 14(2) and Section 17 of
the Planning Act. The Commission therefore has no jurisdiction to hear
appeals of these decisions.
An Order finding that the
Commission is without jurisdiction to hear these appeals will therefore be issued.
WHEREAS Arthur Jennings, Philip Wood, the Board of Governors of St. Dunstan's
University, Superior Properties and Rentals Inc. and Superior Sanitation Services Inc.,
and D. Ron Burke, have appealed certain decisions by the Municipal Council of the City of
Charlottetown and the Minister of Community Services and Attorney General;
the Commission received written
submissions and heard arguments on a preliminary matter at a public hearing conducted
after due public notice in Charlottetown on December 22, 1999;
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
and the Planning Act
IT IS ORDERED THAT
1. The Commission
is without jurisdiction to hear these appeals.
DATED at Charlottetown, Prince Edward Island, this 11th day of January, 2000.
BY THE COMMISSION:
Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
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 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.
1 An Act
to Amend the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1994, Cap. 29. An Act to Amend the Planning Act, R.S.P.E.I. 1994 Cap. 46.