Decision Date: October 10, 1997

Panel: Toby Vigod, Andrew Thompson, Geza Toth

Keywords: Forest Practices Code of British Columbia Act – ss.138, 122, 143, 157; Re Maple Lodge Farms Limited v. Government of Canada (S.C.C.); Re Lloyd and Superintendent of Motor Vehicles (B.C.C.A.); Re Lewis and Superintendent of Motor Vehicles for British Columbia (B.C.C.A.); Alkali Lake Indian Band v. Westcoast Transmission Company Limited (B.C.C.A.); Sebastian v. Saskatchewan (Sask. Q.B.); R. v. Geraghty (B.C.C.A.); R. v. Sault Ste-Marie (City) (S.C.C.); R. v. Chapin (S.C.C.); R. v. DeSousa (S.C.C.); R. v. Martin (Ont. C.A.); The Queen v. Crown Diamond Paint Co. Ltd. (Fed.C.A.); administrative remedies; review of law on vicarious liability; fettering discretion.

Canadian Forest Products (“Canfor”) appealed a Review Panel decision, which upheld a District Manager’s determination that Canfor contravened section 67 of the Code but rescinded the $1 500 penalty. Canfor appealed on the grounds that the District Manager fettered his discretion by blindly applying Policy 16.10 to make a determination against Canfor rather than its sub-contractor, who was directly responsible for the contravention. Further, Canfor submitted that the defence of due diligence should be available to absolve it from liability for a breach of s.67 of the Code. Canfor also argued that it should not have been found vicariously liable under s.117(2) since the sub-contractor was not acting “in the course of a carrying out the employment,” when it committed the contravention.

The Commission found that when determining Code contraventions, a Senior Official, such as a District Manager, exercises discretion first of all when determining who contravened the Code and secondly, when determining whether a penalty should be levied and what the amount of it should be. The Ministry can develop policy in relation to making these determinations. The Commission concluded that the District Manager may have fettered his discretion when he decided not to proceed against the contractor or sub-contractor since he did not consider any other reasons for his decision besides Policy guidance on the recklessness of contractors. However, even if there was fettering in relation to the contractor, this did not absolve Canfor – both may be subject to a contravention. The Commission found that the District Manager did not fetter his discretion with respect to Canfor. The Commission confirmed its earlier decisions finding that due diligence was not available as a defence to Canfor. The Commission found that it was acceptable to have different standards of proof and different defences available for the commission of an offence and an administrative sanction arising out of the same set of facts or actions. The Commission concluded that Canfor was vicariously liable and that the sub-contractor was acting in the course of the contract; it was performing the contractual harvesting work but doing it in an unauthorized and improper manner. The Commission upheld the Review Panel decision and recommended that the determination not be considered in an application of the Performance Based Harvesting Regulation.