Decision Date: April 11, 2017

Court: B.C.S.C., Registrar

Citation: Nelson Registry No. 18824

Erie Creek Forest Reserve Ltd. (“Erie Creek”) sought a judicial review by the BC Supreme Court of a decision issued by the Commission (Erie Creek Forest Reserve Ltd. v. Private Managed Forest Land Council, Decision No. 2014-PMF-001(a)).

The Commission’s decision involved Erie Creek’s appeal against a reconsideration decision issued by the Private Managed Forest Land Council (the “Council”), which confirmed a previous determination of contravention and penalty against Erie Creek. The Council determined that Erie Creek had contravened section 21(3) of the Private Managed Forest Land Council Regulation (the “Regulation”) by failing to maintain the structural integrity of a road prism and failing to ensure the proper functioning of the roads’ drainage systems, resulting in a material adverse effect on fish habitat. Part of a logging road that was used and maintained by Erie Creek failed during the spring of 2012. Two slides occurred on the road within 100 metres of one another, causing damage to the road surface and depositing debris into a fish stream below the road. The Council levied an administrative penalty of $7,500 against Erie Creek and ordered it to conduct remedial work.

On appeal, Erie Creek submitted that the defences of due diligence and mistake of fact in the Private Managed Forest Land Act (the “Act”) applied to absolve it from liability for the contravention, and that the penalty was inconsistent with the factors to be considered under section 26(5) of the Act.

For the mistake of fact defence to succeed, Erie Creek had to prove, on a balance of probabilities, that it reasonably and honestly believed in the existence of facts that, if true, would establish that it did not contravene section 21 of the Regulation. The Commission found that Erie Creek may have honestly believed that the road was stable after Erie Creek had repaired it in early 2011, but that belief was not a reasonable one. Erie Creek knew, or should have known, that there was a high risk of slope failure where the slides originated, and that a slope failure could have a material adverse effect on the fish stream below the road. Erie Creek was aware that the road was built many years ago when road-building standards were lower than modern standards, the road has steep side slopes, and is in an area of high precipitation. Also, in early 2011, Erie Creek repaired the road within a one kilometre stretch of where the slides occurred, including at the point where one of the 2012 slides originated. The repairs were done to address chronic erosion. Although precipitation during spring 2012 was higher than normal, it was not unprecedented, and there was no evidence that Erie Creek had considered whether the road could withstand foreseeable high precipitation events during the winter/spring, when Erie Creek’s practice was to leave the road unmonitored.

For the defence of due diligence to succeed, Erie Creek had to prove, on a balance of probabilities, that it took all reasonable steps to avoid the contravention. In particular, it had to show that it had a system to prevent the contravention from occurring, and it took reasonable steps to ensure the effective operation of that system. The Commission found that Erie Creek failed to establish that it had a system in place for assessing the risk of material harm to fish habitat from a failure of the road prism or the road’s drainage systems, and determining whether action should be taken to mitigate those risks. Erie Creek provided no evidence that it considered whether measures should be taken with the road prism or drainage structures to avoid a material adverse effect on fish habitat that could foreseeably arise during the winter/spring, when Erie Creek left the road unmonitored. The road repairs conducted in early 2011 were not part of a system designed to minimize or prevent negative impacts on the environment caused by inadequate maintenance of the road.

Given that neither of the defences applied, the Commission considered whether the penalty was appropriate based on the facts and the factors to be considered under section 26(5) of the Act. Based on those considerations, and given that the maximum penalty is $25,000, the Commission found that the penalty should be reduced to $3,000. In particular, the Commission found that: Erie Creek reported the slides, cooperated with the Council’s investigation, and took steps to repair the damage before it was ordered to do so; Erie Creek had no previous contraventions; the contravention was not deliberate or continuous; Erie Creek received no economic benefit from the contravention; and, although there was a permanent loss of fish habitat, the lost habitat was of marginal importance to fish.

In conclusion, the Commission dismissed the appeal, except for the reduction of the penalty.

Erie Creek sought a judicial review of the Commission’s decision on the grounds that the Commission erred in law with regard to the weight to be given to certain evidence, and in applying the legal test for the defence of due diligence. Erie Creek also asserted that the Commission was biased against it.

Before the matter was heard by the Court, the parties negotiated an agreement to settle the matter.

By consent of the parties, the Court ordered that the petition was dismissed, with each party bearing their own costs.