St. Peters Estates Ltd. v. Land Use Commission (P.E.I.), (1990) 86 Nfld. & P.E.I.R. 271 (PEITD)

• Judge: McQuaid, J.
• Case Date: October 05, 1990
• Jurisdiction: Prince Edward Island
• Citations: (1990), 86 Nfld. & P.E.I.R. 271 (PEITD)

St. Peters v. Land Use (1990), 86 Nfld. & P.E.I.R. 271 (PEITD);

    268 A.P.R. 271

MLB headnote and full text

St. Peters Estates Ltd. (applicant) v. Prince Edward Island Land Use Commission (respondent) (No. GSC-8989)

Indexed As: St. Peters Estates Ltd. v. Land Use Commission (P.E.I.)

Prince Edward Island Supreme Court

Trial Division

McQuaid, J.

October 5, 1990.

Summary:

Section 5(1) of the Prince Edward Island Lands Protection Act stated that a corporation could not acquire more than 10 acres of land without first receiving the permission of the Lieutenant Governor-In-Council. In 1986 St. Peters Estates Ltd. applied for permission to acquire 500 acres. The land had been "identified" or zoned for nondevelopment. The Executive Council granted permission to purchase on the condition that St. Peters Estates agree to the nondevelopment restriction. In 1989 St. Peters Estates applied to have the nondevelopment identification cancelled. Pursuant to the Planning Act, the Land Use Commission held a hearing on the application. Following the hearing, the Commission voted to reject the application. St. Peters Estates applied to have the decision declared a nullity on the ground that, inter alia, the Commission failed to hold the vote at the open hearing as was required by the Planning Act.

The Prince Edward Island Supreme Court, Trial Division, held that the Commission's decision was a nullity.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - Land was identified (zoned) for nondevelopment - The owner applied for the cancellation of the identification under the Planning Act - After the hearing, the Commission declined to cancel the identification and gave reasons - The Commission also submitted recommendations to the government regarding changes in the legislation - The landowner submitted that the recommendations formed part of the decision and should be disclosed - The landowner applied to have the Commission's decision set aside because of the failure to disclose all of the reasons - The Prince Edward Island Supreme Court, Trial Division, ruled that the recommendations were not part of the decision - See paragraph 111.

Administrative Law - Topic 562

The hearing and decision - Decisions of the tribunal - Time for - Effect of failure to decide within prescribed period - Certain land was identified for nondevelopment - The Planning Act allowed the Commission to cancel the identification by voting at an open meeting - Before an application could be decided, the legislation changed to allow the Commission to vote after an open meeting - The Commission followed the latter procedure and voted not to cancel the identification after an open meeting - The owner applied to quash the decision on the ground that the right to a vote at an open meeting was a substantive right that had vested - The Prince Edward Island Supreme Court, Trial Division, allowed the application and held that the Commission's decision was a nullity - See paragraphs 100 to 160.

Administrative Law - Topic 3204

Judicial review - Agencies or tribunals subject to review - Lieutenant Governor-In-Council - Orders-in-council - A landowner applied for the cancellation of an identification (zoning) as farmland under the Planning Act - The Land Use Commission dismissed the application - The landowner applied for judicial review - The landowner submitted that the Commission lacked jurisdiction to deal with the matter because the order-in-council regulating the scheme was invalid - The Prince Edward Island Supreme Court, Trial Division, observed that while an order-in-council was subject to judicial review, in the absence of any palpable error by the Commission, it must be done by way of a direct challenge and not as part of an action against the Land Use Commission - See paragraphs 204 to 207.

Administrative Law - Topic 7504

Delegated powers - Powers which may be delegated - Under the Planning Act and the Lands Protection Act, the Land Use Commission was required to conduct reviews and make recommendations concerning the zoning of land - The Commission claimed that power to make recommendations was procedural or administrative and delegated it to its executive director - A landowner submitted that decisions based on the Executive Director's recommendation were invalid because the commission had no authority to delegate its substantive power - The Prince Edward Island Supreme Court, Trial Division, observed that the Commission's delegation of the power to make recommendations was invalid - See paragraphs 208 to 248.

Administrative Law - Topic 7565

Delegated powers - Subdelegation of powers - Prohibition against delegation by delegate - Delegatus non potest delegare - [See Administrative Law - Topic 7504 ].

Crown - Topic 541

Orders-in-council - General principles - Judicial review - [See Administrative Law - Topic 3204 ].

Land Regulation - Topic 3459

Land use control - Agricultural land - Land protection commissions - Jurisdiction and powers - [See Administrative Law - Topic 7504 ].

Land Regulation - Topic 3461

Land use control - Agricultural land - Exemptions - Preconditions - A landowner applied under the Lands Protection Act for the cancellation of a zoning as agricultural land - The application was reviewed by the Land Use Commission - One of the requirements was an assessment of the best land use based on the guidelines and policies established by the Lieutenant Governor-In-Council under the Planning Act - However, the guidelines and policies were never formulated - The landowner submitted that the Commission's decision was invalid because it failed to comply with all the statutory requirements for conducting a review - The Prince Edward Island Supreme Court, Trial Division, observed that the assessment of best land use could be done using other criteria and severed the offending portion from the statute - See paragraphs 253 to 280.

Land Regulation - Topic 3464

Land use control - Agricultural land - Exemptions - Nonconfirming uses - Use for a purpose other than agriculture - [See Administrative Law - Topic 562 ].

Statutes - Topic 1569

Interpretation - Construction where meaning is not plain - Implied meaning - Express language necessary - Infringement of common law rights - The Prince Edward Island Supreme Court, Trial Division, considered whether a common law right was altered by a statute - The court held that a statute could not be construed as modifying the common law unless the statute indicated clearly and distinctly that modification was its intention - Also, the intention to modify the common law must be expressed in a concise and unambiguous fashion because there is no presumption by inference or otherwise that the common law is to be altered - See paragraphs 17 to 21.

Statutes - Topic 1782

Interpretation - Intrinsic aids - General - Statement of purpose - The Prince Edward Island Supreme Court, Trial Division, considered the principles applicable in interpreting a statute where the words used in the body conflict with the statute's statement or purpose - The court stated that: first one must have regard to what the legislation actually said; second, to apply the words used by the legislature in their clear and grammatical meaning towards the accomplishment of the indicated purpose of the legislation; finally, should there be inconsistency between the words used and the purported purpose of the legislation, then the words must prevail - See paragraphs 38 to 45.

Statutes - Topic 2262

Interpretation - Presumptions and rules in aid - Against abridgement of common law rights - [See Statutes - Topic 1569 ].

Statutes - Topic 3005

Interpretation - Construction where intention is plain - Liberal construction - The Prince Edward Island Supreme Court, Trial Division, stated that "every enactment shall be construed as being remedial, and shall be given such fair, large and liberal construction and interpretation as best insures the attainment of its objects. That is to say, first determine the objects of the legislation ..., and then construe its application liberally and remedially in the attainment of these objectives." - See paragraph 23.

Statutes - Topic 5130

Operation and effect - Enabling Acts - Obligatory, mandatory, imperative or absolute Acts - Whether mandatory enactment is obligatory or directory only - The Prince Edward Island Supreme Court, Trial Division, stated that a statute which ordains that something "shall" be done is mandatory and must be obeyed because there is nothing discretionary about it - However, should such an interpretation render the context irrational or meaningless, "shall" may then be construed as being permissive - See paragraph 37.

Statutes - Topic 5517

Operation and effect - Delegated legislation - Orders-in-council - Judicial review - [See Administrative Law - Topic 3204 ].

Statutes - Topic 6305

Operation and effect - Substitutions - Effect on proceedings commenced under repealed statute - During the course of an application for zoning, the legislation governing the matter was amended - The Prince Edward Island Supreme Court, Trial Division, held that the rights and privileges which accrued or existed under the original legislation were not abridged by the amendment - The action could continue just as if it were commenced under the new legislation - However, should there be inconsistency between the former and latter legislation, the former was grandfathered and remained the applicable and relevant legislation for the purposes of the action - See paragraphs 30 and 31.

Statutes - Topic 6305

Operation and effect - Substitutions - Effect on proceedings commenced under repealed statutes - [See Administrative law - Topic 562 ].

Cases Noticed:

City of Ottawa v. Boyd Builders Ltd., [1965] S.C.R. 408, refd to. [para. 15].

Prince Edward Island Retail Gasoline Dealers Association, Re (1981), 37 Nfld. & P.E.I.R. 46; 104 A.P.R. 46; 128 D.L.R.(3d) 141, consd. [para. 17].

Nordenfeldt v. Maxim Nordenfeldt Guns and Ammunition Co., [1894] A.C. 535, consd. [para. 18].

Leach v. R., [1912] A.C. 305, consd. [para. 20].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, appld. [para. 34].

Public Finance Corp. and Edwards Garage Ltd., Re (1957), 22 W.W.R.(N.S.) 312, consd. [para. 36].

R. v. Sommerville, [1974] S.C.R. 387, consd. [para. 43].

Brophy v. Attorney General of Manitoba, [1894] A.C. 202, consd. [para. 43].

Haydon's Case, 76 E.R. 637, consd. [para. 42].

Toronto Transit Comm. v. Toronto, [1971] S.C.R. 746, consd. [para. 43].

National Farmers Union v. P.E.I. Potato Marketing Council (1989), 74 Nfld. & P.E.I.R. 64; 231 A.P.R. 64 (P.E.I.S.C.T.D.), refd to. [para. 44].

Ashbury v. Riche (Ashbury Ry. Carriage & Iron Co. Ltd. v. Riche) (1875), L.R. 7 H.L. 653, consd. [para. 49].

Sussex Justices Case, [1924] 1 K.B. 256, refd to. [para. 62].

Anisminic Ltd. v. Foreign Compensation Commission et al., [1967] 2 All E.R. 986, consd. [para. 96].

Eisner v. Minister of Lands and Forests (1974), 10 N.S.R.(2d) 160; 2 A.P.R. 160 (C.A.), refd to. [para. 110].

Bell Canada and Palmer, Re (1973), 38 D.L.R.(3d) 148 (F.C.T.D.), consd. [para. 110].

R. v. Carnation Co. Ltd. (1968), 67 D.L.R.(2d) 215 (Alta. C.A.), refd to. [para. 110].

Hamilton Gell v. White, [1922] 2 K.B. 422, refd to. [para. 111].

Truman v. Wilkins (1971), 21 D.L.R.(3d) 301 (Ont. C.A.), refd to. [para. 118].

R. v. Firkins (1977), 80 D.L.R.(3d) 63 (B.C.C.A.), refd to. [para. 118].

Robertson v. Wright (1958), 16 D.L.R.(2d) 364 (Sask. C.A.), refd to. [para. 118].

Hackett v. Ginther (1986), 26 D.L.R.(4th) 106 (Sask. C.A.), refd to. [para. 118].

Southam Inc. v. Economic Development Committee of Hamilton-Wentworth (Regional Committee), Re (1988), 30 O.A.C. 39; 33 Admin. L.R. 125, consd. [para. 119].

R. v. Horback (1967), 64 D.L.R.(2d) 17, consd. [para. 144].

Parkhill Bedding v. International Molders and the Manitoba Labour Board (1961), 26 D.L.R.(2d) 589, refd to. [para. 198].

Bell v. Ontario Human Rights Comm., [1971] S.C.R. 756, refd to. [para. 198].

N.B. Broilers Growers Marketing Board v. Sussex Poultry Ltd. (1970), 2 N.B.R.(2d) 873, refd to. [para. 198].

Van Hul and Honkoop et al. v. P.E.I. Tobacco Commodity Marketing Board (1984), 51 Nfld. & P.E.I.R. 124; 150 A.P.R. 124, consd. [para. 203].

Syndicat National des Employés de la Commission Scolaire Régionale de l'Outaouais (CSN) v. Union des Employés de Service, Local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, consd. [para. 204].

Inuit Tapirisat of Canada and National Anti-poverty Organization v. Attorney General of Canada, [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, consd. [para. 208].

Border Cities Press Club v. Attorney General of Ontario, [1955] 1 D.L.R. 405, refd to. [para. 209].

Ahmad v. Public Service Commission Appeal Board (1974), 6 N.R. 287; 51 D.L.R.(3d) 470 (F.C.A.), consd. [para. 231].

Dene Nation et al. v. R., 6 Admin L.R. 268, consd. [para. 234].

Reference re Regulations (Chemicals) under War Measures Act, [1943] 1 D.L.R. 248, refd to. [para. 241].

Geraghty v. Porter, [1917] N.Z.L.R. 554, refd to. [para. 241].

Arcade Amusements Inc. v. Montréal, [1985] 1 S.C.R. 368; 58 N.R. 339; 18 D.L.R.(4th) 161 (S.C.C.), appld. [para. 277].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970 (App. III), sect. 1(a) [para. 164].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 103].

Interpretation Act, R.S.P.E.I. 1974, c. I-6.1, sect. 17(2)(a), sect. 17(2)(c) [para. 65]; sect. 26(e.1), sect. 26(e.2) [para. 33]; sect. 32 [para. 27]; sect. 32(c) [para. 138]; sect. 33(1)(b) [para. 28].

Judicial Review Act, R.S.P.E.I. 1974, c. J-3.1, sect. 4 [para. 88]; sect. 4(1) [para. 187]; sect. 4(1)(a) [para. 162]; sect. 4(3) [para. 92].

Lands Protection Act (P.E.I.), R.S.P.E.I. 1974, c. L-7.1, sect. 4, sect. 5(1), sect. 5(2) [para. 211]; sect. 8 [para. 212]; sect. 9 [paras. 79, 213, 263]; sect. 10 [para. 214].

Planning Act, R.S.P.E.I. 1974, c. P-6, sect. 3(1) [para. 225]; sect. 4(1)(a) [paras. 102, 189, 264]; sect. 4(1)(e) [paras. 102, 189]; sect. 4(1)(f) [paras. 67, 189]; sect. 4(1)(h) [paras. 189, 264]; sect. 4(1)(j) [para. 264]; sect. 4(2) [paras. 68, 264]; sect. 4(3) [paras. 69, 217]; sect. 6(4) [paras. 101, 139]; sect. 6(4)(a) [para. 105]; sect. 46(1) [para. 66].

Planning Act Regulations (P.E.I.), Land Identification Regulations, EC 710/77, sect. 3(a), sect. 5 [para. 77]; sect. 5(1) [para. 221].

Land Identification Regulations (P.E.I.) - see Planning Act Regulations (P.E.I.).

Planning Act, R.S.P.E.I. 1974, c. P-6.1, sect. 2 [para. 39]; sect. 8(6)(a) [para. 106].

Supreme Court Act, R.S.P.E.I. 1974, c. S-012, sect. 3 [para. 94].

Authors and Works Noticed:

Maxwell, Interpretation of Statutes (10th Ed.), generally [para. 36].

Stewart and Palmer, Company Law of Canada (5th Ed.), p. 47 [para. 50].

Counsel:

Maureen M. Gregory, for the applicant;

Charles P. Thompson, for the Government of Prince Edward Island;

Paul Michael, for the Prince Edward Island Land Use Commission.

This application was heard on May 1 through 3, August 20, 21, 1990, before McQuaid, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following judgment on October 5, 1990: