Decision Date: April 23, 1998

Panel: Andrew Thompson, Patricia Marchak, Monty Mosher

Keywords: Forest Practices Code of British Columbia Act — ss. 67(1), 67(2)(d), 117(4)(b); Timber Harvesting Practices Regulation — s. 3(1); no harvest zones; application to withdraw an appeal after a hearing but before a decision was rendered; deterrent penalties; alternate retention patches; compensation penalties.

Canadian Forest Products Ltd. (“Canfor”) appealed a decision of a review panel to send a determination back to the District Manager (“DM”) for reconsideration. The determination levied a penalty of $36,000 against Canfor for unauthorized timber harvesting.

Canfor appealed on the grounds that a referral back to the DM would serve no useful purpose and might result in a further series of appeals resulting in further time, costs, and expenses for all parties. Canfor argued that the DM had prejudged the outcome and should therefore be disqualified from further involvement in the determination. In addition, Canfor argued that the Commission had before it all of the evidence needed to render a final decision on the issue of penalty and that it would best serve the interests of all parties by concluding the proceedings immediately. After completion of the hearing of this appeal, Canfor requested in writing that its appeal be withdrawn, citing section 5 of the Forest Appeals Commission Procedure Manual, or, alternately, asked for the determination to be sent back to the DM.

The Commission held that the Manual is not legally binding and does not specifically address a situation where a hearing has been completed. It further held that it was within the discretion of the Commission to allow a withdrawal after a hearing has been completed. In this case, the Commission found it was not appropriate to allow a withdrawal of the appeal because the hearing had taken place at considerable time and expense to all involved and the Commission had all the evidence it needed to hear and determine the issues before it on the appeal. Thus, the Commission ruled that it was not appropriate to allow a withdrawal or a referral back to the DM for a redetermination of the issues. The Commission found that a referral back to the DM would take substantial hearing time and would create uncertainty with the possibility of an appeal from a redetermination by a new review panel followed by a new appeal to the Commission.

On the merits, the Commission held that no deterrent penalty should be imposed because the unlawful harvesting was offset by the provision of retention patches and the prompt and cooperative response extended by Canfor. However, the Commission reassessed the volume harvested by taking the average of two estimates, and recalculated the penalty under section 119 of the Code. The penalty was increased to $37, 735 to compensate the Crown for the volumes of timber removed without authorization. The appeal was allowed in part.