Decision Date: June 28, 1999

Panel: Kristen Eirikson

Keywords: Forest Act ss. 76, 77; Timber Marking and Transportation Regulation s. 3(1); hearing de novo; licence cancellations; licence to cut; timber mark.

This was an appeal by Denis Hurtubise (“the Appellant”) against a Review Decision upholding the decision of the District Manager to cancel Mr. Hurtubise’s cutting licence and road use permit for failure to comply with conditions of the licence. Mr. Hurtubise had been issued a licence to cut timber from the bed of portions of Stave Lake. A number of other persons held licences to cut in the same area. The cancellation of Mr. Hurtubise’s licence was a result of incidents involving other licence holders with respect to marking and alleged theft of timber.

The Appellant contended that there was insufficient evidence to justify the suspension and cancellation of his licence. The Board held that cancellation of a licence requires actual, not perceived interference with others rights, and that there was insufficient compelling evidence to establish that, on a balance of probabilities, Mr. Hurtubise interfered with the rights of other licence holders on the lake. This finding was supported by what the Board found to be a vague licensing and statutory scheme governing this situation, and by the nature of the logging processes and informal timber marking system used on the lake. The Board noted that given the circumstances, it was extremely difficult to determine what would constitute an interference with rights.

The Appellant contended that as hearings before the Board are de novo in nature, the Review Decision could not form part of the record or be considered by the Board. The Board found that Determinations and Review Decisions form part of the record, as section 147 of the Forest Act requires that “the determination, order, or decision appealed from” must be submitted when filing a notice of appeal. The Board also found that the fact that there may be no changes made by a Review Panel in rendering its decision does not deny the right of appeal, and does not mean that the Board may not consider the reasoning of the Review Panel in upholding the determination.

The Board concluded that Determinations and Review Decisions may be considered by the Board. However, they do not form part of the evidence or constitute findings of fact that must be given any particular weight or even considered by the Board.

The Board rescinded the determination of the Manager, as upheld by the Review Panel, and rescinded the cancellation of the Appellant’s licence to cut and his related road use permit. The appeal was allowed.