Decision Date: March 15, 1999

Panel: Barbara Fisher, Kristen Eirikson, Howard Saunders

Keywords: Forest Practices Code of British Columbia Act – s. 96(1), 97, 117, 119; Crown timber; unauthorized harvest; quantum of penalty.

Mr. Stevens and Ms. Krofta appealed a Review Panel decision upholding the District Manager’s decision to impose a compensatory penalty of $12,169 against them for the unauthorized harvesting of an estimated 117.7 cubic metres of Crown timber. They did not dispute that the unauthorized harvest had occurred, but argued that the compensatory penalty was excessive because the District Manager’s estimate of the value of the timber was too high. They also argued that the deterrent penalties, totalling $6,000, which were assessed by the District Manager and referred back to him by the Review Panel for reconsideration, were not warranted in the circumstances.

The District Manager had based his calculation for the compensatory penalty on the average stumpage rate plus bonus bid for the District at the time of the unauthorized harvesting. Due to the nature and the location of the timber, the Commission found it unlikely that the Crown could have obtained the District Manager’s resulting figure of $103 per cubic metre. The Appellants had received $74 per cubic metre, after logging costs, from selling the timber in a competitive market.

The Commission considered the factors listed in section 117(4) of the Code, including the facts that the violation was not deliberate nor a repeat violation and that the Appellants had received some economic benefit from the contravention. The Commission found that the compensatory penalty should have been based on the amount that the Crown would have received if the timber had been sold by competitive bid. Accordingly, the Commission reduced the compensatory penalty to $8,710.

The Commission did not uphold the Review Panel’s decision to refer the quantum of the deterrent penalty back to the District Manager. It found that no deterrent penalty should have been levied in this case because, among other reasons, the timber in question was not part of a commercial stand, and Mr. Stevens had no experience in logging and had made reasonable efforts to determine his property boundary. The appeal was allowed.