Decision Date: March 12, 1999

Panel: Toby Vigod, Bruce Devitt, Kathy Lewis

Keywords: Forest Practices Code of British Columbia Act – ss. 96(1), 97(2), 117, 119; Forest Act – s. 138(1); trespass; unauthorized harvesting.

Mr. Luoma appealed the decisions of two Review Panels upholding the decision of the District Manager to assess penalties of $14,369 under section 96(1) of the Code, $29,421 under section 138(1) of the Forest Act, and $2500 under section 97(2) the Code. The penalties were assessed after the District Manager found that Mr. Luoma had harvested Crown timber on land next to his property without authorization, and failed to ascertain the boundaries of private land adjoining Crown land.

Mr. Luoma sought an order setting aside the District Manager’s determination and the two Review Panel decisions. He argued that it was not proven, on a balance of probabilities, that he was responsible for the unauthorized harvesting of timber on the Crown land adjacent to his property. If he was found responsible, he argued that there was no evidence that any unauthorized harvesting occurred after the date of proclamation of the Code, and thus any penalties should be assessed under the Forest Act.

The Panel found that the circumstantial evidence produced by the Respondent was very strong and that an adverse inference could be made against Mr. Luoma for his failure to testify at the hearing. The Panel concluded that, on a balance of probabilities, Mr. Luoma was responsible for the unauthorized harvesting of the timber. Based on information not available to the District Manager when he made his decision, the Panel found that 286.4 and 232 cubic metres of timber had been harvested before and after, respectively, the proclamation of the Code. Using the methodology and penalty rates employed by the District Manager, the Panel re-calculated the penalties and found that $34,908 should be assessed for violation of the Code and $19,925 for violation of the Forest Act.

The Panel found that Mr. Luoma knew where the boundaries of his land were, and thus found that the contravention of section 97(2) of the Code should be rescinded. The Panel found further that, as the appeal was a hearing de novo, it did not need to address the issue of whether one of the Review Panels had erred in referring the Forest Act determination back to the District Manager for reconsideration after he had already found that the Forest Act had been contravened. The Panel found further that any error made by the Review Panel in directing the District Manager to investigate the use of the timber mark involved was also cured by the hearing de novo before it.

The Panel upheld the decision of the Review Panels that Mr. Luoma had contravened section 96(1) of the Code and section 138(1) of the Forest Act, varied the penalties imposed, and rescinded the finding of a contravention of section 97(2) of the Code and the penalty assessed under that section.