Decision Date: October 14, 1998

Panel: Toby Vigod, Patricia Marchak, David Ormerod

Keywords: Forest Practices Code of British Columbia Act – s. 96(1), 117, 119; Performance Based Harvesting Regulation – s. 3(2.1); meaning of “contravention of a similar nature” in 117(4)(b)(i).

Aspen Planners Ltd. (“Aspen”) appealed a Review Panel decision confirming a determination that Aspen had harvested Crown timber without authorization, and upholding the penalty of $9,602.88. A contractor had conducted the unauthorized harvesting outside an approved cut block within Aspen’s Forest Licence. Aspen argued that its penalty should be reduced to zero because it had an operating policy in place, the boundaries were marked and flagged, it had walked the block and reviewed the plans with the contractor, and it had a monitoring policy in place. It also argued that the volume of timber was applied against its AAC therefore the Crown suffered no loss.

Aspen further argued that the contravention should not be considered in any future determinations arising from the application of the Performance Based Harvesting Regulation (the “Regulation“).

The Commission found that the penalty amount reflected Aspen’s efforts to prevent unauthorized harvesting. No deterrent penalty was assessed even though this was Aspen’s third contravention of section 96(1) in 24 months. “Similar” contravention under section 117 does not mean identical. The Commission found that the previous decision-makers properly considered Aspen’s economic benefit. The fact that the volume cut was applied against Aspen’s AAC did not mitigate against the penalty assessed. There was no reason to alter the penalty amount. Regarding application of the Regulation, the Commission stated that it could not fetter the discretion of the District Manager by directing him or her not to consider this contravention in a future application of the Regulation; it could only make a recommendation. However, this was not an appropriate case to do so given Aspen’s previous contraventions and evidence that the error may have been avoided had a supervisor been on-site. The appeal was dismissed.