Decision Date: November 25, 2009

Before: Kirkpatrick, J.

Cite: 2009 BCCA 527

Ronald Edward Hegel and 449970 B.C. Ltd. (the “Appellants”) sought leave to appeal a decision of the British Columbia Supreme Court dismissing an appeal from decision of Forest Appeals Commission (the “Commission”) which found that the Appellants had harvested Crown timber without authority contrary to the Forest Practices Code of British Columbia Act (the “Code”).

The decision at stake was the Commission’s decision in Ronald Edward Hegel and 449970 B.C. Ltd. v. Government of British Columbia, Decision No. 2005-FOR-009(a), issued on October 12, 2007.  The Appellants had appealed a determination by the District Manager, Ministry of Forests and Range, that they had contravened sections 96(1) and 97(2) of the Code by failing to ascertain the boundaries of their private property and harvesting Crown timber without authority.  The District Manager levied a total of $132,897.40 in administrative penalties.  The Appellants appealed to the Commission on the grounds that they had exercised due diligence in attempting to locate the property boundaries, that they were under a mistake of fact regarding the boundaries, that their actions resulted from an officially induced error, and that the penalty was excessive.  The Commission considered a great deal of evidence regarding the boundaries of the Appellants’ private property, including modern and historical surveying reports, and confirmed the District Manager’s determination, except for making a minor adjustment to the penalty at the request of the Government.

The Appellants appealed the Commission’s decision to the BC Supreme Court.  The Appellants raised four grounds for appeal.  With respect to the first ground of appeal, the trial judge concluded that the Commission made no error of law in reaching its conclusion about the location of the northern boundary of the Appellants’ property and in concluding that the alleged area of unlawful harvesting was Crown land.  As to the second ground of appeal, the judge found that the Commission had misstated Mr. Hegel’s evidence as to the starting point of his investigation of the property boundary.  However, the judge concluded that the Commission’s decision would not and should not have been any different.  Regarding the third ground of appeal, the judge found that the Commission did not misapprehend the evidence concerning the Appellants’ exercise of due diligence in their efforts to determine the location of the boundary.  Lastly, the judge found that the Commission did not err in law in its approach to the defence of mistake of fact.  Accordingly, the Court dismissed the appeal (Ronald Edward Hegel and 449970 B.C. Ltd. v. Province of British Columbia (Ministry of Forests and Range), 2009 BCSC 863).

The Appellants then sought leave to appeal to the BC Court of Appeal.  The Court of Appeal held that the legislation enabling appeals of the Commission’s decisions to the BC Supreme Court only permits appeals on questions of pure law and jurisdiction.  The Court of Appeal considered the four grounds for appeal that were before the BC Supreme Court, and held that those grounds for appeal did not raise questions of law; rather, they raised questions of mixed fact and law.  The Court also held the right of appeal on questions of law does not include a right of appeal on questions of mixed fact and law.  Consequently, the Court concluded that the appeal was not properly before the BC Supreme Court.  Accordingly, the application for leave to appeal was dismissed.