Decision Date: June 25, 2002

Court: B.C.S.C. Metzger, J.

Cite: Kamloops Registry No. 31224

The Gilberts and the Minister of Forests appealed a decision of the Forest Appeals Commission confirming that the Gilberts had contravened section 96 the Forest Practices Code, and directing the Ministry of Forests’ District Manager to reduce the penalty levied against the Gilberts by an amount equal to the expenses they had incurred from complying with a verbal stop-work order issued by a Ministry of Forests official. The Minister of Forests appealed the Commission’s findings with respect to the penalty. The Gilberts appealed the Commission’s findings that they were vicariously liable for, and had benefited from, the actions of David Colebank, whom the Gilberts had hired to clear their land. Mr. Colebank and the Gilberts had agreed to share the proceeds from the sale of the timber. Without the Gilberts’ knowledge, Mr. Colebank moved their private property boundary lines onto Crown land and harvested timber from both Crown land and the Gilberts’ land. The Commission found that the Gilberts shared in the proceeds from the sale of the Crown timber and their timber.

The Gilberts argued that the Commission erred in law and in fact when it determined that Mr. Colebank cut the Crown timber on their behalf, and that they were in a partnership with Mr. Colebank. The Gilberts argued that the Commission also erred by upholding the District Manager’s findings with respect to the amount of timber that was illegally harvested under the Gilberts’ timber mark.

With respect to the appropriate standard of review, the Court adopted the findings in International Forest Products Ltd. v. British Columbia (Forest Appeals Commission), [1998] B.C.J. No. 1314 (B.C.S.C.), and applied a standard of reasonableness simpliciter.

The Court considered whether the Commission erred in its interpretation and application of section 96 of the Code. The Court found that sections 96(3) and 117(2) of the Code impose vicarious liability. Under section 117(2), liability can be imposed by virtue of the relationship between parties, such as a relationship of agency, employment, or contract. Under section 96(3), liability can also be imposed where timber was cut “at the direction or on the behalf of” another person. The Court noted that in both cases the liability is absolute. The Court found that there was no doubt that Mr. Colebank harvested the Crown timber and that the Gilberts received payment for it. The Court found that the evidence before the Commission was consistent with the conclusion that the activity of Mr. Colebank was undertaken “on behalf of” the Gilberts, even if Mr. Colebank had acted illegally and without the knowledge of the Gilberts. The Court also found that there was no reason to disagree with the Commission’s rejection of the Gilberts’ theory that Mr. Colebank had sold a substantial amount of the Crown timber under another timber mark.

The Court found that the Gilberts had suffered damages as a result of following a verbal stop-work order issued by the Ministry. The Court noted that no written order was given as required by the Code, and that the Gilberts did not know that they could have ignored the order. Therefore, the Court agreed with the Commission’s decision to refer the matter back to the District Manager to determine the setoff that the Gilberts should receive as against their penalty.

The Court dismissed the appeals and ordered that the Commission’s decision to remit the matter of the penalty back to the District Manager be implemented to the extent that it directs the penalty to be reduced by an amount equal to the Gilberts’ expenses incurred as a result of the Ministry’s verbal order.