Decision Date: February 24, 2000

Court: B.C.S.C. Shaw J.

Cite: Vancouver Registry No. A981665 & A982927

Keywords: Forest Act – s. 61; Omineca Enterprises v. Ministry of Forests; procedural fairness; audi alterem partem

Omineca Enterprises Ltd. (“Omineca”) applied for an order to set aside a decision of the Forest Appeal Board which found that the Ministry of Forests cancelled two Timber Sale Harvesting Licences of Omineca in accordance with the law. Omineca contested the legal merits of the TSHL cancellations and also claimed that the Board had breached the rules of procedural fairness.

Omineca’s argued that there had never been a formal order of cancellation of the TSHLs and that section 61 (now section 77) of the Forest Act required that such an order be made. The court found that the section 61 requirements for cancellation had been followed by the MOF. The Ministry had published a notice of the cancellation in the B.C. Gazette, and the Minister had then confirmed the cancellation in a letter. In addition, notice of cancellation had been implied into section 61 in Omineca Enterprises v. Minister of Forests, [1990] B.C.J. No. 2594. The court stated that there was no justification for reading into section 61 the further requirement of making a formal cancellation order.

Omineca also contended that the cancellation was invalid because one of the Ministry’s grounds for cancellation was a claim for rent owing on the TSHL up to 1986. Omineca argued that, under section 62 (now section 79) of the Forest Act, its obligation to pay rent ceased with the suspension of its cutting permits in 1983. However, the court held that section 62 does not apply to cutting permits and, therefore, Omineca owed rentals up to the time when the TSHL was cancelled, in 1986.

Omineca raised two procedural issues. It first contended that the Board received materials that were not sent to the parties. The court found there was no merit to this ground of appeal as Omineca could not point to any possibility of prejudice arising from what had occurred. Omineca also complained that from time to time, counsel to the Board met with the Board when it retired to consider procedural and evidentiary issues. Omineca contended that this constituted a breach of the audi alterem partem rule. The court found that the circumstances did not warrant an inference of a breach of the audi alterem partem rule. The appeal was dismissed.

Application for leave to appeal was dismissed by British Columbia Court of Appeal.