Decision Date: August 27, 1998

Panel: David Ormerod

Keywords: Forest Practices Code of British Columbia Act – ss. 67(1)(f), 126; Hengstler v. Government of British Columbia (Forest Appeals Commission Appeal No. 1997-FOR-19, February 24, 1998); R. v. Jorgensen [1995] 4 S.C.R. 55; R. v. Cancoil Thermal Corp. and Parkinson (1986), 52 C.R. (3d) 188 (O.C.A.)

Fab-Co appealed a Review Panel decision upholding a determination that Fab-Co had exceeded allowable soil disturbance levels during logging operations in June of 1996. The Appellant sought relief from site remediation costs and deletion of the contravention record, arguing that it relied on the advice and instructions of Ministry of Forests (the “Ministry”) officials.

The Commission found that while s. 67(1) of the Code was contravened, Fab-Co could rely on the defence of officially induced error. Fab-Co followed the requirements of the Logging Plan drafted by the Ministry, and was advised during field inspections that its operations were within the parameters of the Logging Plan. As a licensee under the Small Business Forest Enterprise Program, Fab-Co had limited expertise and was required to rely on the advice, instructions and requirements of the Ministry. Further, the Ministry subsequently determined that it should not have allowed any logging operations in the area during June. The Commission found that the appropriate remedy for such a finding is to hold that the contravention did not occur.

The Commission also found that the remediation work ordered in the original determination was improperly undertaken by the Ministry and billed to Fab-Co when the case was under appeal and a statutory stay was in effect. The Commission rescinded the previous decisions and remediation order and ordered that the monies paid by Fab-Co be returned by the Ministry, with interest. The appeal was allowed.