Decision Date: May 26, 1997

Panel: Toby Vigod, Monty Mosher, Bruce Devitt

Keywords: Forest Practices Code of British Columbia Act – ss. 96, 117, 157; defence of due diligence, MacMillan Bloedel Ltd. v. Government of B.C. (FAC Appeal No. 96/05(b)), Forest Act – s. 84.

In October of 1996, a Senior Official issued a determination to Canadian Forest Products Ltd. (‘Canfor’) for contravening section 96 of the Forest Practices Code of British Columbia Act (the ‘Code‘) and levied a penalty of $150 under section 117, after observing that Canfor was “not to blame” for the transgression. Canfor’s Contractor had admitted that it had caused a contravention of and was willing to accept responsibility. No determination was issued to the Contractor.

A Review Panel upheld the determination and the penalty after finding that a defence of due diligence was not available to Canfor. Canfor appealed that decision on the ground that the Review Panel erred in refusing to consider the defence. In the appeal, the Forest Practices Board raised an additional issue regarding the fairness of Ministry of Forest’s Policy 16.10 – Determinations, which recommends penalizing a licensee rather than its contractors and employees.

The Commission held that section 117 of the Code does not provide for a defence of due diligence, citing its reasons in MacMillan Bloedel (Appeal No. 96/05(b)). However, even if the defence was available, the Commission found there was insufficient evidence and argument presented in this case to decide whether the defence had been made. The Commission declined to comment on Policy 16.10. The appeal was dismissed.