Decision Date: August 13, 1998

Panel: Rob Kyle

Keywords: Forest Practices Code of British Columbia Act – s. 96, 117; liability; quantum of penalty; Canadian Forest Products v. Government of British Columbia (Forest Appeals Commission, Appeal No. 1997-FOR-06, October 10, 1997); MacMillan Bloedel Ltd. v. Government of British Columbia (Forest Appeals Commission, Appeal No. 96/05(b), February 19, 1997).

The Angels appealed a Review Panel decision upholding a determination that they contravened the Code by harvesting Crown timber without authorization and confirming a penalty assessment of $2,610.74. The Angels argued that they should not be held liable for the contravention since the harvesting was performed by their daughter’s partner, Mr. Rui. The Angels argued that Mr. Rui should be solely responsible for the trespass as they were not present during the harvesting and he was not acting as their agent, employee or contractor.

The Commission held that once a contravention is established on a balance of probabilities, section 96(1) imposes absolute liability. The Commission found that Mr. Rui was acting on behalf of the Angels, and, therefore, they are vicariously liable for the contravention under section 96(2) of the Code. The Commission found that the Angels failed to make out any defence to the finding of a contravention.

Regarding the penalty, the Commission found that although the Angels failed to exercise reasonable care to avoid the contravention, the penalty should be reduced. It found that the Review Panel had considered the whole of the economic benefit to the Angels, not just that derived from the contravention. Further, it found that the objective of encouraging compliance with the Code could be achieved through a lower penalty since the circumstances of the case were unique, and another trespass was very unlikely to occur. The Commission reduced the assessed market value of the timber by one half, for a total penalty of $1556.30. The appeal was allowed.