Decision Date: February 4, 1998

Panel: Toby Vigod, Deborah Todd, Howard Saunders

Keywords: Ministry of Forests Policy 16.10; cross-stream yarding; International Forest Products v. Government of British Columbia (Appeal No. 96/02(b)).

Hayes Forest Services Limited appealed a Review Panel decision confirming the District Manager’s determination that Hayes had contravened section 67(1) of the Forest Practices Code and section 8(1) of the Timber Harvesting Practices Regulation by yarding timber across a stream and not constructing a spur road in contravention of its logging plan. The penalties of $2500 for each contravention were also upheld. Hayes argued that (1) the District Manager erred in making a finding that Hayes had violated the logging plan by failing to construct a spur road; (2) that the Ministry should have proceeded only against TimberWest, the licensee, in accordance with Ministry policy; (3) that the finding of two separate contraventions and the imposition of two separate penalties for a single infraction is double jeopardy and fundamentally unfair; (4) that the penalties were excessive as the Ministry took into account two previous contraventions which had been subsequently rescinded and the Ministry’s site investigation costs.

The Commission agreed that there was no contravention of the logging plan due to failing to construct the spur road because the logging plan did not require the spur road to be built prior to the commencement of any logging operations. On the second issue, the Commission found that the Code leaves it entirely open as to who may be the subject of a determination, and the policy simply says that the licencee will “normally” be subject to a determination. In the circumstances of this case, the Commission found the Ministry properly exercised its discretion to make a determination against the contractor. It was a major player in the District and took full responsibility for the contravention. On the issue of double jeopardy, it was found that the common law rule against multiple convictions for the same wrongful act is not applicable to contraventions assessed under the Code and its regulations. At the same time, the Commission also recognized that overlaps in the regulatory scheme can result in unfairness if two separate penalties are assessed for one wrongful act. The Commission resolved this by finding that any unfairness can be remedied at the penalty assessment stage, since government officials have significant discretion in assessing a penalty. On the final issue of the amount of the penalties, the Commission found that the Ministry should not have considered contraventions later rescinded or the costs involved in investigating the possible violations. The Commission reduced the penalty to take into account the improper considerations.

The Commission therefore varied the decision of the Review Panel by upholding the contravention determinations but assessing one penalty of $4000.00 for both contraventions.