Decision Date: April 23, 2001

Panel: Alan Andison, Katherine Lewis, Brenda Milbrath

Keywords: Forest Practices Code of British Columbia Act – ss. 58, 96; unauthorized harvesting of Crown timber; unauthorized construction of road on Crown land; agent acting “on behalf of”; partnerships; appropriate penalty; stop work order.

This was an appeal by Rodney Gilbert and Linda Gilbert of a Review Panel decision which confirmed the decision of the District Manager (“DM”). The DM found that Rodney Gilbert contravened the Code by unauthorized harvest of Crown timber and unauthorized road construction on Crown land, and that Linda Gilbert contravened the Code by unauthorized harvest of Crown timber. Penalties of $100,557.17 were assessed against each of the Appellants.

The Appellants did not dispute that unauthorized harvesting of Crown timber occurred. Mr. Gilbert argued that he complied with the Code by having the Appellants’ property surveyed, and that any contravention of s. 96(1) was the sole responsibility of Mr. Colebank, with whom the Appellants had contracted to remove timber from their property. Pursuant to s. 96(3), the Commission found that they were responsible for the actions of Mr. Colebank because their arrangement was in the nature of a partnership, he was acting on their behalf, and they benefited from the unauthorized harvesting by receiving a percentage of the money obtained from the sale of the timber.

Mr. Gilbert also disputed the finding that he constructed a road on Crown land. He submitted that the road was pre-existing and that any construction by Mr. Colebank was to traverse a wet area. The Panel found that the Mr. Gilbert was responsible for Mr. Colebank’s actions, either through their partnership or, alternatively, because Mr. Colebank acted as Mr. Gilbert’s agent. The Panel upheld this finding of a contravention.

The Appellants disputed the determination of the volume of timber harvested from Crown land and the calculation of the penalty. The Appellants argued that all of the timber that received their timber mark came from their property alone, and that any Crown timber was either tagged under a different mark or not at all. It was also their submission that the estimate of the wood harvested on Crown land was excessive and that the penalty was correspondingly excessive. The Commission found that the harvested Crown timber was marked with the Appellants’ timber mark given that the volume of timber sold was in excess of estimates of volumes present on the Appellants’ land. The Appellants claimed a further reduction in the penalty for loss of a season of farming due to the “stop work order” issued by the Ministry of Forest. The Commission found that the penalty assessed fully compensated the Crown for the timber removed, but that the Appellants’ compliance with the stop work order should be considered in determining the appropriate penalty. The Commission referred the appeal back to the DM to reduce the penalty to reflect the costs incurred by the Appellants due to the stop work order.

The appeal was allowed in part.