Decision Date: June 30, 1998

Panel: Toby Vigod, Gerry Burch, Geza Toth

Keywords: Salvage Timber Sale; Timber Sale Licence; Forest Act – s. 18; Forest Practices Code of British Columbia Act – s. 96, 117(4), 119(1), 127(1), 129; officially induced error; Tolko v. Government of British Columbia; audi alteram partem; notice of the case to be met and opportunity to be heard

Dean Foisy appealed the decision of a Review Panel, which had varied the decision of a District Manager by increasing a penalty for a contravention of section 96(1) of the Code (unauthorized harvest of 98 m³ of beetle infested timber) from $1,522.73 to $6,727.31 on the basis of information the Panel gathered after the hearing. Mr. Foisy argued that he was given verbal approval to harvest the additional timber; the Review Panel exceeded its jurisdiction by dealing with a matter not specifically before it (i.e. the penalty); and the Panel varied the penalty based on information to which he had not had a full opportunity to consider and respond.

The Commission found on the facts that Mr. Foisy had not been given approval to harvest the additional timber. Regarding the jurisdictional issue, the Commission found that the Review Panel had a broad remedial power under the Code to vary the penalty imposed by the senior official, regardless of whether Mr. Foisy had specifically requested the variation. However, the Commission found that the variation must be done in accordance with the principles of natural justice. In this case, the Commission found that a telephone call by a Review Panel member to Mr. Foisy after the hearing, asking questions about selling prices without an indication that this information might be used to vary the penalty, did not adhere to the rules of natural justice and procedural fairness. The Commission also found that the Review Panel had increased the penalty for the overcutting by 4.5 times what it should have been – the Panel failed to consider Mr. Foisy’s operating expenses and incorrectly applied a bonus bid to timber of salvage quality. The Commission reduced the penalty to the original assessment made by the District Manager. The appeal was allowed.