Decision Date: April 9, 2002

Panel: David Ormerod, Katherine Lewis, Lorraine Shore

Keywords: Forest Practices Code of British Columbia Act – ss. 96, 97, 117, 119; officially induced error; unauthorized timber harvesting; appropriate penalty

Mr. Bentley appealed the Review Panel decision that upheld the District Manager’s determination that Mr. Bentley was responsible for contravening sections 96(1) and 97(1) of the Code. Specifically, the District Manager determined that Mr. Bentley caused the unauthorized harvesting of 10.52 hectares of Crown timber. The District Manager assessed a penalty of $2,500 for the contravention of section 97(1) of the Code; a penalty of $234,837.36 for the contravention of section 96(1), and a penalty of $30,297.60 for silviculture rehabilitation as sanctioned by section 119(3)(a) of the Code.

The Commission first considered whether the defence of officially induced error applies to administrative penalties under the Code. The Commission noted that it had recognized the availability of that defence in two previous appeals. The Commission confirmed that the defence applies to administrative penalties under the Code.

Next, the Commission considered whether the contraventions in this case were the result of an officially induced error. The Commission concluded that Mr. Bentley had not satisfied all of the requirements of the defence. Specifically, the Commission found that while the actions of staff in the Ministry of Forests, and at other government agencies, may have contributed to Mr. Bentley’s mistaken beliefs about the location of the boundaries of his family’s private lands, these actions did not constitute officially induced error. The information provided to Mr. Bentley about the private property boundary was sketchy, and he was warned that he should have the boundaries surveyed. Mr. Bentley relied on an erroneous understanding in his family, not on erroneous advice from an official.

Lastly, the Commission considered whether the penalty was reasonable. Based on its analysis of the stumpage rate to be used, the Commission reduced the penalty for the unauthorized harvesting to $225,042.31. The Commission also rescinded the penalty assessed under section 119(3)(a) on the basis that the Crown was already compensated for its silviculture costs in the stumpage penalty assessed. Therefore, the total of administrative penalty to be paid by Mr. Bentley was $227,542.21. Accordingly, the appeal was allowed, in part.