Decision Date: March 20, 1999

Panel: Rob Kyle, Kristen Eirikson, Monty Mosher

Keywords: Forest Practices Code of British Columbia Act – ss. 62(1), 63(1), 64(1); Forest Road Regulation – ss. 17(1), 20(c); road maintenance; road deactivation; contravention; penalty.

Slocan Forest Products Ltd. (“Slocan”) appealed a determination of the District Manager, upheld by a Review Panel, that Slocan had not carried out proper road maintenance and deactivation measures on a forest road in the Morkill River Valley, in contravention of sections 63(1) and 64(1) of the Code and sections 17(1) and 20(c) of the Forest Road Regulation. Slocan also appealed an administrative penalty of $14,000 upheld by the Review Panel, and sought to have the contraventions rescinded and the penalty set aside.

The Commission found that the portions of the road on which the alleged contraventions took place were sections of the road covered by the road permit issued to Slocan. The Commission concluded that Slocan did not inspect and repair the road to minimize sediment transport from the road to a nearby creek. The Commission therefore upheld the determinations of contravention under sections 17(1) of the Regulation and section 63(1) of the Code.

The Commission also found that Slocan failed to appropriately deactivate the road in accordance with the Deactivation Plan approved by the Ministry of Forests. The Commission therefore upheld the decision that Slocan had contravened section 20(c) of the Regulation and section 64(1) of the Code. The Commission found that these four contraventions led to two distinct and independent legal prohibitions, and that the Review Panel did not err in finding multiple contraventions. The Commission also found that Slocan was not entitled to a defence of due diligence.

The Commission considered the factors for assessing penalties set out in section 117 of the Code and found the quantum of the penalty to be excessive. It found that the magnitude and gravity of the contraventions were not as severe as described in the determination of the District Manager, that the contraventions were not deliberate, that there had been no economic benefit to Slocan, and that Slocan cooperated in efforts to correct the problem. The Commission concluded that an appropriate penalty was $4,000 for Slocan’s failure to inspect and maintain the road, and $2,000 for Slocan’s failure to properly deactivate the road in accordance with the Deactivation Plan. The appeal was allowed, in part.