Decision Date: November 6, 1998

Panel: Toby Vigod, David Ormerod, David Walkem

Keywords: Forest Practices Code of British Columbia Act – s. 96(1), 117, 119(1); MacMillan Bloedel Ltd. v. Government of British Columbia (Forest Appeals Commission, Appeal No. 96/05(c), September 4, 1997); Foisy v. Government of British Columbia (Forest Appeals Commission, Appeal No. 1997-FOR-35, June 30, 1998); Tolko v. Government of British Columbia (Forest Appeals Commission, Appeal No. 95/02, November 12, 1996; Adams v. WCB (1989), 42 BCLR (2d) 228; quantum of penalty; curing of defect.

Safe Enterprises D.L.S. Ltd. (“Safe Enterprises”) appealed a Review Panel decision upholding the District Manager’s decision to impose a penalty of $39,339 for the unauthorized harvesting of Crown timber. Safe Enterprises did not dispute that unauthorized harvesting had occurred, but submitted that the penalty was excessive and should be reduced. It argued that the District Manager failed to consider all relevant factors under section 117 of the Code, and improperly considered contraventions which occurred prior to the enactment of the Code, irrelevant factors, erroneous information regarding the timber species, and showed bias in making his decision.

The Commission found that the District Manager properly considered the factors in section 117 of the Code, except regarding previous contraventions. The District Manager’s consideration of previous unauthorized harvesting by the Appellant was not appropriate since this occurred under the Forest Act and not the Code. However, the Commission noted that the District Manager gave little weight to these previous contraventions and found that the penalty assessed was appropriate. The Panel also found that the DM’s determination of the timber species and stumpage charge was reasonable. The Appellant’s deliberate mixing of private timber with the Crown timber in question made it impossible to determine the exact species mix of the Crown timber. In an administrative proceeding, this evidence need not be proved beyond a reasonable doubt.

No evidence of bias was put forth by the Appellant so the Commission dismissed this claim. With respect to procedural fairness, the Commission found that the District Manager failed to give the Appellant an opportunity to respond to all the evidence he considered. However, this breach of procedural fairness was remedied by the hearings before the Review Panel and Commission where the Appellant was given an appropriate opportunity to respond. The Commission found the penalty was appropriate in all the circumstances. The appeal was dismissed.