Decision Date: January 8, 1998

Panel: Toby Vigod, Katherine Lewis, David Walkem

Keywords: Forest Practices Code of British Columbia Act – ss. 35(1)(b), 47(1), 67(1)(a),(e); cutting permit; operational feasibility; estoppel; officially induced error.

Atco Lumber Ltd. (“Atco”) appealed an Administrative Review decision which upheld the determination that Atco had contravened sections 35(1), 47(1), and 67(1) of the Code by not attaining the distribution and quantity of “leave trees” on a cut block as specified in the Silviculture Prescription Amendment. Administrative penalties of $500 for each contravention were also upheld by the Review Panel. Atco sought an order from the Commission rescinding the Review Panel’s decision and the associated administrative penalties in their entirety or in part. It contended that some of the veteran species listed in the Leave Tree Specifications did not exist on the block, and therefore the phrase “where operationally feasible” in the Prescription provided the mechanism for its decisions with regard to the cut. Atco further contended that Ministry of Forests staff did not instruct Atco to cease operations despite their awareness of the problem, and therefore any contraventions of the Code were committed as a result of their conduct and the Ministry of Forests was estopped from taking enforcement action. Alternatively, Atco contended that the “defence” of officially induced error was available.

The Commission found that in the case where no veteran trees existed in the area to be harvested, there were no “operational” decisions to be made and “operational feasibility” could not be said to apply. The Commission therefore held that Atco carried out timber harvesting that was not in accordance with its Silviculture Prescription, in contravention of section 67 of the Code. However, the Commission found that Atco did meet the requirements of the Silviculture Prescription Amendment. The Commission further held that this was not an appropriate case to apply the equitable doctrine of estoppel because estoppel cannot be used to prevent the operation or enforcement of a positive duty imposed by statute. Finally, the Commission found that all the requirements necessary to satisfy the definition of officially induced error were not present and that the communications to Atco from the Ministry of Forests regarding the Leave Tree Specifications could not be construed as erroneous legal advice.

The Commission therefore upheld the decision of the Review Panel that Atco contravened the original Silviculture Prescription and rescinded the decision of the Review Panel that Atco had contravened the Silviculture Prescription Amendment. The Commission found that a single penalty of $500 should be levied for the contraventions of sections 35(1)(b) and 67(1)(c). The appeal was allowed in part.