Decision Date: February 24, 1998

Panel: Toby Vigod, Annie Booth, David Walkem

Keywords: Forest Practices Code of British Columbia Act – ss. 96(1), 119; harvesting Crown timber without authorization; title to property subject to a highway; gazetted road; 40 foot right-of-way; “section 4” road; exact location of road; defence of officially induced error; reliance on official advice.

The Hengstlers appealed the determination, as upheld by a Review Panel, that they contravened section 96(1) of the Code by harvesting Crown timber without authorization. The determination carried a penalty of $2564.43, based on an assessment of the volume of trees cut. The Hengstlers had selectively logged an area adjacent to a small lane, called Musgrave Road, which runs through their property on Saltspring Island. Before commencing operations, they had made numerous inquiries to the Land Title Office, the Ministry of Transportation and Highways, and the Ministry of Forests with regard to the legal status and width of the road, and had been advised that the road was probably a “section 4” road, meaning that it was only as wide as its banks.

After the logging operation had been completed, the Ministry of Forests determined that the road was in fact a gazetted highway, 40 feet in width, and that the Hengstlers had cut and removed timber from within the Crown’s right-of-way. The Hengstlers appealed the finding of contravention and the quantum of the penalty on the grounds that the road had not been surveyed and that the exact location of Musgrave Road could not be properly ascertained from the Gazette Notice and other records. Further, they argued that if there was a contravention, it was the result of an officially induced error.

The Commission accepted that the road was legally established as a highway and that the Hengstlers took their land subject to that road. The Commission found that in the circumstances, the best evidence of the road’s “exact location” was the road itself and that the distance and volume calculations for the timber cut were accurate. However, the Commission also adopted a previous finding of the Commission that officially induced error is available as a defence to administrative penalties, and held that the Hengstlers met all the elements of the defence: they demonstrated, on the balance of probabilities, that an officially induced error of law occurred. The Commission found that the questions they asked of the various government agencies were directed to the appropriate government officials and were specifically tailored to their situation, and that the Hengstlers had relied on the advice they obtained. The Commission also found that the advice – “if the road was not on the title, then it was probably a section 4 ‘bank to bank’ road” – was not unreasonable on its face. The defence was accepted and the finding of contravention, as it applied to the area outside of the banks of the road, was rescinded.

The Commission also found, however, that some trees may have been cut within the “bank to bank” portion of the road and that the defence of officially induced error did not apply to the cutting of those trees. The Commission was not in a position to determine the exact number of trees or to calculate the volume of wood cut within that area, and therefore referred the matter back to the District Manager with directions that a new, lower penalty be assessed. The appeal was allowed in part.