Decision Date: June 29, 2009
Court: BCSC, Meiklem
Cite: 2009 BCSC 863
Ronald Edward Hegel and 449970 B.C. Ltd (the “Appellants”) appealed a decision of the Forest Appeals Commission (the “Commission”) issued on October 12, 2007 (Ronald Edward Hegel and 449970 B.C. Ltd. v. Government of British Columbia, Decision No. 2005-FOR-009(a)).
The events that led to the appeal may be summarized as follows. In or about 2002, 449970 B.C. Ltd. commenced logging on property that it owned near Avola, B.C. Mr. Hegel was the president of 449970 B.C. Ltd. In 2005, the District Manager, Ministry of Forests and Range, determined that the Appellants had contravened sections 96(1) and 97(2) of the Forest Practices Code of British Columbia Act (the “Code”) by failing to properly ascertain the boundaries of their property, and harvesting Crown timber without authority. The District Manager levied a penalty of $132,897.40 against the Appellants.
The Appellants appealed the District Manager’s decision to the Commission on the grounds that they had exercised due diligence in attempting to locate the property boundary, that they were under a mistake of fact regarding the boundary, that their actions resulted from an officially induced error, and that the penalty was excessive.
The evidence before the Commission focused on Mr. Hegel’s efforts to ascertain the property boundaries, and whether an area referred to as “Area A”, which is located to the north and west of the property, and which was the alleged site of the unauthorized harvesting, is located on the Appellants’ property or on Crown land. The parties provided a substantial amount of evidence of historic and recent surveys of the area. The property’s south and east boundaries were not in dispute.
The Commission considered whether the Appellants contravened the Code by failing to properly ascertain the boundaries of the property. The Commission accepted the Government’s expert evidence that Area A is located north of the Appellants’ property and on Crown land. The Commission also considered the evidence of the Appellants’ surveyor, which also indicated that Area A was on Crown land. The Commission held that the Appellants’ attempt to ascertain the boundaries was inadequate and resulted in the unauthorized harvest of Crown timber.
The Commission then considered whether the Appellants had established any defences. The Commission found that, although Mr. Hegel made efforts to ascertain the boundaries before harvesting began, his actions were inadequate to establish the defence of due diligence. Specifically, he had failed to locate corner pins and to measure all of the boundaries against previous survey notes. The Commission also found that the Appellants did not establish the defences of mistake of fact or officially induced error.
In conclusion, the Commission confirmed the contravention and, at the Government’s request, slightly reduced the penalty based on new evidence. The appeal was dismissed.
The Appellants then appealed to the British Columbia Supreme Court on the grounds that the Commission erred in law:
- in determining the location of the property’s north boundary, and in concluding that Area A is on Crown Land;
- by concluding that Mr. Hegel started his on-site investigation of the boundaries of the property from a wooden fence post;
- by concluding that the Appellants did not exercise due diligence in their efforts to determine the location of the northern boundary of the property;
- by concluding that the defence of mistake of fact did not apply to the Appellants’ efforts to determine the location of the northern boundary of the property.
The Court found that the Commission made no error of law in reaching its conclusion about the location of the property’s northern boundary and in concluding that Area A is on Crown land. The Court rejected this ground for appeal.
The Court also rejected the second ground for appeal. Although the Court found that the Commission misstated Mr. Hegel’s evidence by stating that he started his investigation at a wooden fence post rather than at an old staking post, the Court found that, absent this minor mistake, the Commission’s decision regarding the defences of due diligence and mistake of fact would have, and should have, been no different.
Regarding the third ground for appeal, the Court found that the Appellants did not allege that the Commission had misstated the legal test to be applied in respect of due diligence. The Court also found that the Commission did not misapprehend the evidence regarding the defence of due diligence.
On the fourth ground for appeal, the Court held that the Commission was entitled to consider the reasonableness of Mr. Hegel’s overall efforts to ascertain the property boundaries. The Court found no error of law in the Commission’s approach to the defence of mistake of fact.
In conclusion, the Court dismissed the appeal.