Decision Date: July 18, 2000

Panel: Lorraine Shore, Bruce Devitt, James Hackett

Keywords: Forest Act – ss. 138(1), 138.1(1), 138.1(2), 139; Ministry of Forests Policy on Trespass – s. 12.63; timber cutting and removal; allocation of penalty between multiple parties.

This was an appeal brought by Robin Brekkas of a review decision of the Acting Regional Manager. That decision varied the determination of the District Manager by rescinding the contravention of section 65(1)(b) of the Forest Act, R.S.B.C. 1979, but upholding the determination that Mr. Brekkas had contravened sections 138(1), 138.1(1) and 138.1(2) for cutting Crown timber without authorization. The penalty assessment of one times stumpage, or $34,761.62, was also upheld. Mr. Brekkas appealed both the findings of contravention and the penalty.

The Commission found that, although other people were also partly responsible for the trespass, Mr. Brekkas had an obligation to ensure that a trespass did not occur since he participated in the logging operation from beginning to end. He failed to live up to that obligation and, therefore, was in contravention of section 138(1). The Commission also found that Mr. Brekkas, as an occupier of private land adjacent to Crown land, was in contravention of section 138.1(1) for failing to inform the logger of the boundaries before authorizing any logging. The Commission rescinded the contravention of section 138.1(2) since section 138.1(1) was more pertinent.

The Commission then considered the appropriate penalty. The Commission found that the proper approach where more than one person is responsible for a trespass is to determine the penalty as a whole, and then allocate that penalty amongst those responsible based on their role in the trespass, economic benefit from the trespass, and cooperativeness during the investigation. The District Manager had applied the whole penalty to each of the parties. The Commission noted that Mr. Brekkas was primarily responsible for the trespass. If Mr. Brekkas had advised the loggers that he did not know where the boundary was, or if he had correctly informed them of where the boundary was, the trespass would not have occurred. He also initially tried to mislead the Ministry of Forests during the investigation. The Commission concluded the appropriate penalty in the circumstances was two times stumpage, or $51,226.28, with Mr. Brekkas apportioned $17,051.46 to deprive him of his profits and give him a significant monetary penalty. The appeal was allowed, in part.