Decision Date: December 14, 2009

Court: BCSC, Fisher

Cite: 2009 BCSC 1715

Pope & Talbot Ltd. (“P&T”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the British Columbia Supreme Court.  The decision under appeal was Pope & Talbot Ltd. v. Government of British Columbia, Decision No. 2005-FOR-004(b), issued September 4, 2007.  In that decision, the Commission confirmed a determination that P&T had contravened section 67(1) of the Forest Practices Code of British Columbia Act (the “Code”) by cutting trees contrary to the silviculture prescription.  The Commission also confirmed the penalty of $1,000, apportioned 60 percent to P&T and 40 percent to its harvesting contractor.  The silviculture prescription for the cut block identified the harvesting to be done as clear-cut “with reserves”, with the objective of leaving a specified volume of “leave trees”.  In the cut block a “guy-line clearing” was also to be done, which was an area where no reserves were required.  After clearing the guy-line area, the logging subcontractor continued to clear cut the entire cut block without leaving any reserves.

P&T had appealed to the Commission on the basis that P&T was duly diligent, and that the contravention was entirely the responsibility of the harvesting contractor and sub-contractor.  In considering whether P&T was duly diligent, the Commission applied the test it set out in Weyerhaeuser v. Government of British Columbia (Decision No. 2004-FOR-005(b), January 17, 2006).  First, the Commission found that the contravention was reasonably foreseeable, because the risk that harvesting may deviate from operational plans was higher than usual due to the extremely complicated silviculture prescription for the cut block.  Second, the Commission considered whether P&T took all reasonable steps to prevent the contravention from occurring.  The Commission found that the collective efforts of P&T, through its Environmental Management System, the layout of the harvesting area and P&T’s supervision of its contractor, were deficient.  P&T gave too much discretion to its staff, the contractor and the sub-contractor in deciding how to implement the leave tree requirements.  The Commission concluded that the defence of due diligence was not established, and dismissed the appeal.
On appeal to the Court, P&T argued that:

1. The Commission did not apply the correct test of foreseeability in considering P&T’s due diligence defence.
2. The Commission found facts not in evidence, failed to consider relevant facts and took irrelevant facts into account in finding that P&T failed to take all reasonable steps to prevent the contravention.
3. The Commission breached the rules of procedural fairness by failing to give P&T an opportunity to be heard on the question of whether marking guy-line clearance boundaries was appropriate in the circumstances.

The Court first considered the standard of review that applied to the Commission’s decision, based on the test set out in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.  Regarding P&T’s first ground for appeal, the Court found that the interpretation of the due diligence test is a question of general law that is important to the legal system and is outside of the Commission’s specialized area of expertise, and therefore, correctness is the appropriate standard of review.  On P&T’s second ground for appeal, the Court also held that correctness is the appropriate standard of review on the question of whether the Commission considered the evidence in such a manner as to constitute an error of law.  However, the Court noted that there is no right of appeal to the Court under section 141 of the Code on questions of fixed fact and law.  On the third ground for appeal, the Court held that consideration of breaches of procedural fairness do not engage a standard of review analysis, because a breach of procedural fairness results in a lack of due process that may result in the tribunal’s decision being set aside or the matter being remitted back to the tribunal.

Turning to P&T’s first ground for appeal, the Court held that the Commission was correct to apply a test of foreseeability in considering P&T’s defence of due diligence, but the due diligence test set out in Weyerhaeuser does not accurately reflect the common law or the legislation, and the Commission’s reiteration of that test in this case caused some confusion.

Specifically, the Court held that there were two substantive errors in Weyerhaeuser.  The first error was to incorrectly define the first branch of the due diligence test as reasonable foreseeability rather than mistake of fact.  Requiring reasonable foreseeability of the event as a condition precedent to a consideration of reasonable care was an incorrect interpretation of the due diligence test.  The only condition precedent to a consideration of whether a person took all reasonable care is that the person was not under a mistake of fact which rendered the person’s conduct innocent.  While foreseeability may be a relevant factor in assessing whether the person took all reasonable care, foreseeability is not a condition precedent to assessing whether the person took reasonable care.

The second error in Weyerhaeuser was the conclusion that the defence of due diligence was established when the company could not reasonably foresee the “circumstances that gave rise to the contravention”, rather than the contravention itself.  The proper inquiry under the second branch of the due diligence test, as codified in the legislation, is whether the person took reasonable care to avoid the “particular event”.  The case law makes it clear that the “particular event” is the contravention itself, and not the circumstances that gave rise to it.

Applying those findings to the present case, the Court held that although the Commission addressed foreseeability as a first step under the defence of due diligence, it correctly focused on the foreseeability of the contravention.  The Commission’s finding that the contravention was reasonably foreseeable is a question of mixed fact and law, which cannot be the subject of an appeal to the Court.  Consequently, the Court rejected P&T’s argument that the Commission did not apply the correct test of foreseeability in considering the due diligence defence.

Regarding P&T’s second ground for appeal, the Court found that the Commission did not misdirect itself on the law on the issue of reasonable care as applied to the facts.  The Commission made the correct inquiry; namely, whether P&T took all reasonable steps to avoid the contravention.  Further, the Commission’s finding that P&T could have done more to prevent the contravention was supported by evidence.  Consequently, the Commission did not err in law in finding on the evidence before it that P&T failed to take all reasonable steps to prevent the contravention.

Finally, the Court held that, although the Commission concluded that the unauthorized harvesting could have been prevented by making more effort to mark the limits of guy-line clearances, and the Commission did not question parties about this issue, this did not constitute a breach of procedural fairness given the overall basis for the Commission’s decision, and given that P&T had a full opportunity to respond to all of the evidence and submissions.

Accordingly, the Court dismissed the appeal.