Irving family challenges decision
Application calls for agriculture minister's call for divestiture to be nullified
Red Fox Acres Limited, a company at the centre of a government investigation into a controversial land transaction, has filed for a judicial review in relation to the findings of that investigation.
The application, filed with the Supreme Court of P.E.I. on Monday, seeks an order nullifying a decision by P.E.I. Minister of Agriculture Bloyce Thompson ordering divestiture of land. The application also seeks an order “preserving the status quo.” A similar application has been filed on behalf of Rebecca Irving, a director of Red Fox Acres and a member of the Irving family.
Thompson has previously stated he has asked for divestiture of an unknown amount of land from one or more parties. A timetable of 120 days was commenced in October for a plan of divestiture for this land. Thompson has said he would file an order seeking enforcement of divestiture after the expiration of that 120-day period.
Red Fox Acres Ltd. acquired 2,200 acres of land from Brendel Farms Ltd., a
family farming operation in June of 2019. At the time, the company was registered as Haslemere Farms Ltd. Its name was later changed to Red Fox Acres Ltd.
The transfer of land occurred without the approval of cabinet, as would normally be required under the Lands Protection Act.
The sale of the same 2,200 acres of land, from Brendel Farms Ltd. to three other corporations, was denied by cabinet of the previous Liberal government.
All three of these corporations listed members of the Irving family as directors
Rebecca Irving was listed as a sole director and shareholder of one of these corporations, Galloway Farms, Ltd.
The details of how this occurred are still unclear. In the summer of 2019, Thompson requested an investigation of the land transaction by the Island Regulatory and Appeals Commission (IRAC). Thompson received the results of this investigation last month.
Thompson has not publicly released the findings of this investigation but has said IRAC concluded there were “reasonable and probable grounds” that two individuals and one corporation contravened the Lands Protection Act. Thompson has not previously named the individuals involved.
At the legislature on Wednesday, Thompson said the filing was not a surprise. He has previously said the possibility of legal action was one reason the report from IRAC has not been publicly released.
Thompson also said his department has not yet been served.
“This is something we fully anticipated would happen,” Thompson said.
“The government’s going to hold strong on our decision. I guess we’ll wait and see what the courts decide.”
The Guardian reached out to Jonathan Coady, legal counsel for Rebecca Irving and Red Fox Acres, but did not hear back by deadline.
In his filing, Coady, called the decision by Thompson “unreasonable and/or procedurally unfair.”
Coady wrote Thompson had exceeded his jurisdiction conferred by the Lands Protection Act. Coady’s application alleges the investigation by IRAC did not adhere to rules and procedures of investigations permitted under the Lands Protection Act.
The filing also alleges IRAC has previously interpreted control and aggregate land holdings based upon the proportion of voting shares held by each shareholder.
The filing also states IRAC has not previously interpreted and applied the Lands Protection Act to “include a global lease permit in the aggregate land holding of a corporation.”
A global lease permit allows acquisition of land through a lease and allows a permitted number of acres of land as part of an aggregate land holding of a person or corporation.
The Lands Protection Act limits land holdings of individuals to 1,000 acres and of corporations to 3,000 acres. Exemptions to this limit, including through lease agreements, could allow individuals or corporations to have a significantly larger aggregate land holdings.