Charlottetown (City) v. Island Regulatory and Appeals Commission (P.E.I.) et al., (2013) 339 Nfld. & P.E.I.R. 192 (PEICA)

• Judge: Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A.
• Case Date: August 01, 2013
• Jurisdiction: Prince Edward Island
• Citations: (2013), 339 Nfld. & P.E.I.R. 192 (PEICA)

Charlottetown v. IRAC (2013), 339 Nfld. & P.E.I.R. 192 (PEICA);

    1054 A.P.R. 192

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. AU.003

City of Charlottetown (appellant) v. Island Regulatory and Appeals Commission and Atlantis Health Spa Ltd. (respondents)

(S1-CA-1248; 2013 PECA 10)

Indexed As: Charlottetown (City) v. Island Regulatory and Appeals Commission (P.E.I.) et al.

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A.

August 1, 2013.

Summary:

Atlantis Health Spa Ltd. applied to the City of Charlottetown to allow a mixed use development on its vacant waterfront property, by amending the zoning and development bylaw for the Waterfront Comprehensive Development Area zone in which the property was situate. Council rejected the application. Atlantis appealed the decision to the P.E.I. Regulatory and Appeals Commission, acting as the appeal tribunal for the province under s. 28 of the Planning Act. The Commission held a hearing, after which it allowed the appeal. The City appealed, pursuant to s. 13(1) of the Island Regulatory and Appeals Commission Act.

The Prince Edward Island Court of Appeal dismissed the appeal. McQuaid, J.A., concurring in the result, reached that conclusion for different reasons.

Administrative Law - Topic 1221

Classification of power or function - Powers or functions classified as quasi-judicial - Appeal Board - Planning appeals - A developer applied to the City of Charlottetown to allow a mixed use development on its vacant waterfront property by amending the zoning and development bylaw - Council rejected the application - The developer appealed to the P.E.I. Regulatory and Appeals Commission acting as the appeal tribunal for the province under s. 28 of the Planning Act - The Commission allowed the appeal - The City appealed - The Prince Edward Island Court of Appeal, per Jenkins, C.J.P.E.I., (Murphy, J.A., concurring) found that the Commission properly performed its function as the appeal tribunal on a planning appeal - "The planning law regime in this province is formulated by the Legislature. Should the City wish to see the authority of the Commission as the appeal tribunal revised or restricted, then its efforts to seek redress should be addressed to the Minister responsible for the Planning Act, and ultimately the Legislature." - See paragraph 66.

Administrative Law - Topic 1264

Classification of power or function - Powers or functions classified as legislative - Municipal bylaws, regulations or resolutions - [See Administrative Law - Topic 1221 ].

Administrative Law - Topic 6173

Judicial review - Statutory appeal - Grounds for review - Error of law - Wrong considerations - [See third Land Regulation - Topic 4126 ].

Administrative Law - Topic 6207

Judicial review - Statutory appeal - Scope or standard of review - Question of law or jurisdiction - [See all Land Regulation - Topic 4143 ].

Administrative Law - Topic 6284

Judicial review - Statutory appeal - Practice - Trial or hearing de novo - [See fourth and sixth Land Regulation - Topic 4126 ].

Land Regulation - Topic 4126

Land use control - Statutory appeals - Powers of appeal board - A developer applied to the City of Charlottetown to allow a mixed use development on its vacant waterfront property - Council rejected the application on the basis that the project did not conform to the existing Waterfront Plan - The developer appealed to the P.E.I. Regulatory and Appeals Commission, acting as a planning appeal tribunal - The Commission allowed the appeal - The City appealed, pursuant to s. 13(1) of the Island Regulatory and Appeals Commission Act - The Prince Edward Island Court of Appeal dismissed the appeal - In the opinion of Jenkins, C.J.P.E.I. (Murphy, J.A., concurring), "the Commission properly performed its function as the appeal tribunal on a planning appeal, and both of its decisions: 1) to quash Council's decision based on procedural error; and 2) to substitute its decision to approve the Developer's application, were reasonable." - See paragraph 28 - McQuaid, J.A., concurring in the result, reached that conclusion for different reasons - See paragraphs 149 to 157.

Land Regulation - Topic 4126

Land use control - Statutory appeals - Powers of appeal board - The City appealed from an order made by the P.E.I. Regulatory and Appeals Commission, acting as the appeal tribunal under s. 28 of the Planning Act - The Prince Edward Island Court of Appeal stated that "it is integral to the Commission's legislative mandate as the appeal tribunal for Planning Act appeals to review the decision of Council for compliance with City bylaws and procedural error. The right of appeal from City Council acting as a decision-making tribunal affecting rights is statutory. The Legislature fully vested the Commission with the function of appeal tribunal ... The Planning Act does not limit the scope of an appeal. ... In order to fulfill its mandate as the appeal tribunal, the authority to review the decision appealed from for compliance with the bylaws and procedural error is necessary." - See paragraphs 31 and 32.

Land Regulation - Topic 4126

Land use control - Statutory appeals - Powers of appeal board - A developer applied to the City of Charlottetown to allow a mixed use development on its vacant waterfront property - Council rejected the application on the basis that the project did not conform to the existing Waterfront Plan - The developer appealed to the P.E.I. Regulatory and Appeals Commission, acting as a planning appeal tribunal - The Commission allowed the appeal - The City appealed - The Prince Edward Island Court of Appeal dismissed the appeal - Upon carrying out its review of the evidence, the Commission could reasonably find, as it did, that Council made an error of law and acted unfairly toward the developer by not deciding the application in accordance with the requirements of the City's planning legislation, and instead making its decision based on consideration of extraneous matters - Council was required to decide an application in accordance with the substantive criteria listed in the Comprehensive Development Area bylaw - "Ultimately, the Commission found that Council sidestepped the merits of the application in pursuit of its desire for a new waterfront plan. This crucial inference made by the Commission appears reasonable to me." - See paragraphs 31 to 37.

Land Regulation - Topic 4126

Land use control - Statutory appeals - Powers of appeal board - A developer applied to the City of Charlottetown to allow a mixed use development - Council rejected the application - The developer appealed to the P.E.I. Regulatory and Appeals Commission, acting as a planning appeal tribunal - The Commission allowed the appeal - It found that the Council made a legal error by failing to decide the application on its merits according to the process set out in the present law, and acted unfairly toward the developer by basing its decision on irrelevant considerations - The Commission declared Council's decision invalid, and decided the matter anew - The Prince Edward Island Court of Appeal dismissed the City's appeal - Per Jenkins, C.J.P.E.I. (Murphy J.A. concurring) - It was within the Commission's mandate to decide the application on its merits - "Where, as here, process was not so followed, the Commission was unable to show deference to Council's decision. ... I am satisfied that the Commission's conclusion that the Developer's proposal development for the subject property, as put forward by Planning Board, is consistent with sound planning principles, is a reasonable decision." - See paragraphs 38 to 41 - Per McQuaid, J.A. (concurring in the result) - The Commission should not have first considered the appeal on the "record" before Council - However, the Commission, after finding Council made a procedural error, proceeded to decide the issues on the basis of the evidence adduced in the hearing de novo - Therefore, if the Commission erred in first adjudicating the appeal on the record, the error was rendered immaterial by the fact the Commission proceeded to hold the hearing de novo - See paragraphs 100 to 112.

Land Regulation - Topic 4126

Land use control - Statutory appeals - Powers of appeal board - A developer applied to the City of Charlottetown to allow a mixed use development - Council rejected the application - The developer appealed to the P.E.I. Regulatory and Appeals Commission, acting as a planning appeal tribunal - The Commission allowed the appeal - In view of the City's ground of appeal that asserted that the Commission improperly substituted its discretion for that of the elected Council, the Prince Edward Island Court of Appeal added an additional explanation regarding its decision to dismiss the appeal - "In my view, the Commission did not usurp the legislated and contractual powers of City Council to administer the City's planning legislation." - See paragraphs 44 to 49.

Land Regulation - Topic 4126

Land use control - Statutory appeals - Powers of appeal board - The City rejected a developer's application to amend the City's Comprehensive Development Area Zoning and Development Bylaw to allow a mixed use development - The developer appealed from the City's decision, based on Council's failure to comply with its own bylaw and on procedural unfairness - The P.E.I. Regulatory and Appeals Commission, acting as a planning appeal tribunal, quashed Council's decision - The Prince Edward Island Court of Appeal held that the Commission properly performed its mandate - The court agreed with both the Commission and the developer that developments in the Planning Act, the Supreme Court of Canada jurisprudence, or the Commission's own jurisprudence, had not introduced any call for revision of the court's directions in the "Reference Case" (Reference Re s. 14(1) of the Island Regulatory and Appeals Commission Act (1997) (P.E.I.C.A.) - Upon Council's decision being rendered invalid, there was no decision by the City upon which to defer - The Commission then had to hear and decide the matter anew, in accordance with the direction in the Reference Case - See paragraphs 50 to 65.

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal (incl. standard of review) - The City of Charlottetown appealed from an order made by the P.E.I. Regulatory and Appeals Commission on a municipal planning appeal - The Prince Edward Island Court of Appeal stated that "[t]he first question on an appellate review of a decision of the Commission acting as a planning appeal tribunal is the applicable standard of review to be applied by the Court of Appeal on reviewing decisions made by the Commission in the course of its conduct of the planning appeal. This question needs to be determined at the outset because it governs the review that the Court of Appeal will perform." - See paragraph 8.

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal (incl. standard of review) - The City appealed from an order of the P.E.I. Regulatory and Appeals Commission, acting as the appeal tribunal for the province under s. 28 of the Planning Act - The City submitted that the Commission failed to consider or to give adequate weight to relevant factors - The Prince Edward Island Court of Appeal stated that "[t]he appeal from the Commission to this Court being confined to questions of law and jurisdiction, I will address the first concern - whether the Commission failed to properly consider relevant factors - but not the second - whether it gave adequate weight to relevant factors. The issue of weight is not a question of law. It is not the role of this Court on an appeal from the Commission decision as the planning appeal tribunal to second guess the weight accorded to the various evidence." - In the end result, there was no demonstration that the Commission failed to consider relevant evidence - See paragraphs 69 and 70.

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal (incl. standard of review) - The City of Charlottetown appealed from an order made by the P.E.I. Regulatory and Appeals Commission, acting as the appeal tribunal for the province under s. 28 of the Planning Act - The right of appeal, on a question of law or jurisdiction, was created by the Island Regulatory and Appeals Commission Act - The Prince Edward Island Court of Appeal concluded that the applicable standard of review for the questions of law that the Commission decided was reasonableness - Per Jenkins, C.J.P.E.I. (Murphy, J.A., concurring), the nature of the questions of law were all central to the Commission's delegated mandate as the planning appeal tribunal - "In order to obtain a full appreciation of the Commission's role and function, the Island Regulatory and Appeals Commission Act and the Planning Act should be viewed together as a legislative scheme." - See paragraphs 9 to 27 - McQuaid, J.A., concurring in the result, reached the same conclusion on the standard of review for different reasons - See paragraphs 113 to 148.

Municipal Law - Topic 1661

Powers of municipalities - Statutory appeals from exercise of powers - General (incl. standard of review) - [See all Land Regulation - Topic 4143 ].

Municipal Law - Topic 1662

Powers of municipalities - Statutory appeals from exercise of powers - Jurisdiction of appeal board - [See second Land Regulation - Topic 4126 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [paras. 12, 121].

Doiron v. Island Regulatory and Appeals Commission (P.E.I.) et al. (2011), 308 Nfld. & P.E.I.R. 84; 958 A.P.R. 84; 2011 PECA 9, refd to. [paras. 13, 120].

Provincial Tax Commissioner (P.E.I.) v. Maritime Dredging Ltd. et al. (1997), 157 Nfld. & P.E.I.R. 80; 486 A.P.R. 80 (P.E.I.C.A.), refd to. [paras. 14, 115].

Maritime Electric Co. v. Summerside (City) (2011), 309 Nfld. & P.E.I.R. 76; 962 A.P.R. 76; 2011 PECA 13, refd to. [paras. 15, 119].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120; 2002 CanLII 3225 (C.A.), refd to. [para. 16].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [paras. 18, 124].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc. (2011), 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 18].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [paras. 18, 126].

Whatcott v. Human Rights Tribunal (Sask.) et al. (2013), 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 18].

MacMaster v. Workers' Compensation Board (P.E.I.) (2012), 330 Nfld. & P.E.I.R. 222; 1026 A.P.R. 222; 2012 PECA 19, refd to. [para. 19].

Reference Re s. 14(1) of the Island Regulatory and Appeals Commission Act (P.E.I.) (1997), 153 Nfld. & P.E.I.R. 287; 475 A.P.R. 287; 149 D.L.R.(4th) 411 (P.E.I.C.A.), consd. [paras. 38 et seq.].

Wiswell v. Winnipeg (Greater), [1965] S.C.R. 512, refd to. [para. 46].

Welbridge Holdings Ltd. v. Winnipeg (Greater), [1971] S.C.R. 957, refd to. [para. 46].

St. Peters Estates Ltd. v. Land Use Commission (P.E.I.) (1990), 86 Nfld. & P.E.I.R. 271; 268 A.P.R. 271 (P.E.I.T.D.), refd to. [para. 46].

Catalyst Paper Corp. v. North Cowichan (District) (2012), 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 46].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [para. 47].

Atkins et al. v. Calgary (City) (1994), 162 A.R. 97; 83 W.A.C. 97 (C.A.), refd to. [para. 48].

Nanaimo (City) v. Rascal Trucking Ltd. et al. (2000), 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2000 SCC 13, refd to. [para. 57].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 62].

65302 British Columbia Ltd. v. Minister of National Revenue, [1999] 3 S.C.R. 804; 248 N.R. 216, refd to. [para. 62].

Lehmann et al. v. Thorhild No. 7 (County) et al., [2011] A.R. Uned. 554; 2011 ABCA 344, refd to. [para. 69].

Oliveira v. Disability Support Program (Ont.) (2008), 233 O.A.C. 308; 2008 ONCA 123, refd to. [para. 69].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al., [1975] 1 S.C.R. 382, refd to. [para. 70].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 70].

Island Telecom Inc. v. Island Regulatory and Appeals Commission (P.E.I.) (2001), 207 Nfld. & P.E.I.R. 161; 620 A.P.R. 161; 2001 PESCAD 27, refd to. [para. 117].

Chapman Brothers Construction Ltd. v. Island Regulatory and Appeals Commission (P.E.I.) (2005), 244 Nfld. & P.E.I.R. 93; 726 A.P.R. 93; 2005 PESCAD 4, refd to. [para. 118].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 129].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 130].

Statutes Noticed:

Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988, c. I-11, sect. 13(1) [para. 9].

Planning Act, R.S.P.E.I. 1988, c. P-8, sect. 28 [para. 11].

Authors and Works Noticed:

Boghoslan, David G., and Davison, J. Murray, The Law of Municipal Liability in Canada (1999), pp. 1.15 to 1.17 [para. 46].

Ginn, Diana, New Words for Old Problems: Dunsmuir (2011), 37 Advocates Quarterly 317, pp. 328 to 330 [para. 130].

Counsel:

David W. Hooley, Q.C., and Bria M. Brown, for the appellant;

Kevin J. Kiley, for the respondent, Island Regulatory and Appeals Commission;

Jonathan M. Coady, for the respondent, Atlantis Health Spa Inc.

This appeal was heard at Charlottetown, P.E.I., on February 25 and 26, 2013, before Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A., of the Prince Edward Island Court of Appeal. The Court delivered the following judgment, dated August 1, 2013. The following reasons were filed:

Jenkins, C.J. P.E.I. (Murphy, J.A., concurring) - see paragraphs 1 to 77;

McQuaid, J.A., concurring in the result - see paragraphs 78 to 157.