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Reconsideration of Decisions Requested by an Affected Person pursuant to s. 33 of the Agricultural Land Commission Act

Regardless of whether an application is refused or approved, the Commission on its own initiative or upon the written request of a person affected by a decision may reconsider its decision pursuant to s. 33 of the ALC Act.

For the purpose of s. 33 of the ALC Act, a person affected, means any of the following, as per ALC Policy P-08 Request for Reconsideration:

  1. an applicant, that is a person who makes an application;
  2. a local government;
  3. a first nation government;
  4. an owner of the land;
  5. a person who is the owner or tenant of land;
    • that shares a common boundary with the land that is the subject of the reconsideration, or
    • that is separated from the land that is the subject of the reconsideration by a public road right of way, or
    • that is, in the opinion of the Commission, otherwise in the immediate vicinity of the land that is the subject of the reconsideration;
  6. such other persons that, in the opinion of the Commission, have a personal interest not a mere public interest in the subject of the original decision. A “public interest” is an interest that a person has as a member of the public at large or a large class of persons, such as taxpayers, who will not be affected differently than any other member of the public or class of persons.

Reconsideration Request Criteria

On the written request of a person affected by a decision, or on a Commission’s own initiative, the Commission may reconsider it’s decision and may confirm, reverse or vary the decision, if certain tests are met.

For ALC decisions made prior to March 12, 2020, the date Bill 15-2019 was brought into force and effect changing the reconsideration process, the Commission can only reconsider if the original decision-making body (i.e. Executive Committee or Panel) determines, pursuant to s. 33(1) of the ALC Act, as it read prior March 12, 2020 (the date Bill 15-2019 came into force and effect) that:

  1. evidence not available at the time of the original decision has become available, OR
  2. all or part of the original decision was based on evidence that was in error or was false

For all decisions made prior to March 12, 2020, a person affected by a decision will have up to one year from the release of the decision to submit a request for reconsideration, as established by ALC Policy P-08 Request for Reconsideration.

If the decision-making body (Executive Committee or Panel) determines a request for reconsideration meets the criteria in s. 33(1) of the ALC Act as it read before March 12th, 2020, then:

  • the commission must give notice of its intention to reconsider a decision to the affected local government and any person that the commission considers is affected by the reconsideration;
  • the decision makers must apply s. 6(2) of the ALC Act when reconsidering the original decision in accordance with s.39(3)(a) of the Transitional Provisions in Bill 15 – 2019.

For ALC decisions made after March 12, 2020, the date Bill 15-2019 was brought into force and effect changing the reconsideration process, the Commission can only reconsider if the original decision-making body (i.e. Executive Committee or Panel) determines, pursuant to s. 33(2) of the ALC Act, as set out in Bill 15-2019, that:

  1. New evidence has become available that was not available at the time of the original decision that could not have been obtained earlier through the exercise of due diligence; ALC Act: s. 33(2)(c)(i); or
  2. Evidence demonstrating that either all or part of the original decision was based on evidence that was incorrect or was false; ALC Act: s. 33(2)(c)(ii).

While Bill 15-2019 contemplates a new 90-day time limit for the submission of a request for reconsideration once a decision has been released, implementation of Bill 15-2019 is being phased in and this condition will take effect at a later date to be determined by the Provincial Government. As a result, an affected person will have up to one year as established by ALC Policy P-08 Request for Reconsideration, or until section 33(2)(a) in Bill 15-2019 takes effect, whichever comes sooner, to request a reconsideration.

Section 33 Reconsideration Request Process

  1. The applicant, agent, or affected person submits a written request (mail or email) for reconsideration within the prescribed time period (set out above) providing evidence or information to support the request as set out in Section 33 of the ALC Act.
  2. The reconsideration request and related application file material is provided to the original decision-making body in advance of its consideration.
  3. The original decision-making body will review the reconsideration request and file material to determine whether or not the request meets the criteria for reconsideration outlined in s. 33 of the ALC Act:
    • If it is determined that the request does not meet the criteria in s. 33 of the ALC Act, the request proceeds no further and the affected person(s) will be notified.
    • If it is determined that the request does meet the criteria in s. 33 of the ALC Act, the original decision-making body must then determine if there are any other persons affected by reconsidering the application.
  4. If the decision-making body (Executive Committee or Panel) determines a request for reconsideration meets the criteria in s. 33 of the ALC Act then the Commission must give notice of its intention to reconsider a decision to the affected local government and any person that the Commission considers is affected by the reconsideration.

Upon reconsidering an application, the original decision-making body (i.e. the Executive Committee or Panel) may confirm, reverse, or vary a decision.

Reconsideration of Decisions as Directed by the ALC Chair pursuant to s. 33.1 of the Agricultural Land Commission Act

Regardless of whether an application is refused or approved, the ALC Chair may direct the Executive Committee to reconsider an application decision made by a Panel pursuant to s. 33.1 of the ALC Act if the Chair considers the decision or the reconsideration of the decision:

(i)   may not fulfill the purposes of the commission as set out in section 6(1), or
(ii)  fails to give priority to the matters referred to in section 6(2), and,

The Chair is given 60 days to review a decision once released and direct the Executive Committee to reconsider the application. At the Chair’s direction, the Executive Committee must review the application and then confirm, reverse, or vary the decision. If the Chair of the Commission directs the Executive Committee to reconsider a decision under subsection (1), the Chair must give notice of the reconsideration to any person that the Chair considers is affected by the reconsideration.

The purpose of s. 33.1(2) is to provide the Chair with oversight to ensure consistency of decision making in accordance with Section 6 of the ALC Act.