Booth et al. v. Island Regulatory and Appeals Commission, (2004) 242 Nfld. & P.E.I.R. 29 (PEICA)

• Judge: Mitchell, C.J.P.E.I., McQuaid and Webber, JJ.A.
• Case Date: September 09, 2004
• Jurisdiction: Prince Edward Island
• Citations: (2004), 242 Nfld. & P.E.I.R. 29 (PEICA);2004 PESCAD 18

Booth v. IRAC (2004), 242 Nfld. & P.E.I.R. 29 (PEICA);

  719 A.P.R. 29

MLB headnote and full text

Temp. Cite: [2004] Nfld. & P.E.I.R. TBEd. OC.006

In The Matter Of an appeal by Allan Booth and Robert Peake against a decision of the Island Regulatory and Appeals Commission dated November 13, 2003

(S1-AD-1017; 2004 PESCAD 18)

Indexed As: Booth et al. v. Island Regulatory and Appeals Commission

Prince Edward Island Supreme Court

Appeal Division

Mitchell, C.J.P.E.I., McQuaid and Webber, JJ.A.

October 4, 2004.

Summary:

A building permit was issued on June 17, 2003, allowing a developer to place a mini home (i.e., a home within the class of a mobile home) on a lot in a subdivision in Miltonvale Park. Two interested parties, the appellants, after discovering that a mobile home was not a permitted use in the area, filed an appeal on July 29, 2003. The Island Regulatory and Appeals Commission (IRAC) ruled that it had no jurisdiction to hear the appeal because it was bound by the statutory 21 day appeal period in s. 28 of the Planning Act which ran from the time the decision was made to issue the building permit. The appellants appealed, arguing that the appeal period should be considered to be 21 days from the date they became aware of the substance of the decision.

The Prince Edward Island Court of Appeal, dismissed the appeal. The court agreed that the IRAC was without jurisdiction, but for different reasons than those given by the IRAC. The court held that the time began to run when the appellants received notice of the decision. A notification process (i.e., either specific notice to those affected or public notice) was necessary to give meaning to the appeal process. In this case, where there was no process of public notice set out in either the Planning Act, or the bylaws of the community, the time only began to run when the appellants received actual notice of the decision. It was not necessary for purposes of this appeal to decide when the appellants were notified of the decision to issue the building permit, because even using the latest possible date, the appeal was beyond the 21 day appeal period.

Administrative Law - Topic 6108

Judicial review - Statutory appeal - Commencement of time in which to appeal or apply for leave to appeal - [See Land Regulation - Topic 3239 ].

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - A building permit was issued on June 17, 2003, respecting a mini home - Two interested parties, the appellants, after discovering that the mini home was not a permitted use in the area, filed an appeal on July 29, 2003 - The Island Regulatory and Appeals Commission (IRAC) ruled that it had no jurisdiction citing the 21 day appeal period in s. 28 of the Planning Act which ran from the time the decision was made to issue the building permit - The appellants appealed - The Prince Edward Island Court of Appeal agreed that the IRAC was without jurisdiction, but for different reasons - The court held that the time began to run when the appellants received notice of the decision - A notification process (i.e., either specific notice to those affected or public notice) was necessary to give meaning to the appeal process - In this case, where there was no process for public notice set out in either the Planning Act, or the bylaws of the community, the time only began to run when the appellants received actual notice of the decision - It was not necessary for purposes of this appeal to decide when the appellants were notified of the decision to issue the building permit, because even using the latest possible date, the appeal was beyond the 21 day appeal period.

Cases Noticed:

Copeland v. Summerside (City) (2002), IRAC Order LA02-01, refd to. [para. 15].

Vidéotron ltée et al. v. Netstar Communications Inc. et al. (2003), 300 N.R. 174 (F.C.A.), refd to. [para. 16].

Shell Canada Resources v. Turner et al. (1989), 75 Sask.R. 150 (C.A.), refd to. [para. 18].

St. John's (City) v. Woolworth (F.W.) Co. (1981), 38 Nfld. & P.E.I.R. 202; 108 A.P.R. 202 (Nfld. C.A.), refd to. [para. 19].

New Brunswick (Minister of Municipal Affairs) v. Hache (1968), 1 N.B.R.(2d) 67; 2 D.L.R.(3d) 186 (C.A.), refd to. [para. 21].

Statutes Noticed:

Planning Act, R.S.P.E.I. 1988, c. P-8, sect. 28(1) [para. 10].

Counsel:

Thomas P. Laughlin, for the appellants;

David R. Sanderson and Mitchell T. MacLeod, for the respondent, Community of Miltonvale Park;

Paul D. Michael, Q.C., for the Island Regulatory and Appeals Commission;

Dirk Wolters, present and representing himself.

This appeal was heard on September 9, 2004, at Charlottetown, Prince Edward Island, before Mitchell, C.J.P.E.I., McQuaid and Webber, JJ.A., of the Prince Edward Island Court of Appeal. The following judgment was delivered for the court by Webber, J.A., on October 4, 2004.