Decision Date: September 4, 1998

Panel: Toby Vigod, Howard Saunders, Geza Toth

Keywords: Forest Practices Code of British Columbia Act – s. 96, 97, 117, 119.

Edward Yaremchuk appealed an Administrative Review Panel decision upholding a determination that Mr. Yaremchuk harvested Crown timber without authorization, but reduced the penalty assessed. He sought an order rescinding the contravention or, alternatively, reducing the penalty assessed. Mr. Yaremchuk had been hired to fall, buck, and skid timber for a private land owner, and he flagged the property boundaries. It was discovered that the boundaries were improperly marked resulting in the cutting and removal of Crown timber. Mr. Yaremchuk argued that he had been acting as the land owner’s employee rather than a private contractor, and that the boundary checked by the land owner, i.e. he was duly diligent.

The Commission found no evidence to suggest that Mr. Yaremchuk was an employee. On a balance of probabilities, he had the primary role in supervising logging operations, and was responsible for flagging the disputed boundary. Furthermore, the Commission found that his limbing and bucking of Crown timber would in themselves violate the Code. The Commission also concluded that the defence of due diligence was not available to absolve Mr. Yaremchuk of liability for the contravention. The Commission followed its reasoning from earlier cases, finding that due diligence is not a defence to administrative penalties levied under the Code. However, evidence of reasonable care was found to be relevant in assessing the quantum of penalty. The Commission found no evidence that he was duly diligent in flagging the boundaries, but found that the land owner shared responsibility for laying out the boundary. Therefore, the Commission upheld the Review Panel decision finding Mr. Yaremchuk had contravened the Code, but reduced the penalty to approximately two times the economic benefit he gained by the unauthorized cutting and to better balance the penalty between him and the land owner. The appeal was allowed in part.