Decision Date: February 8, 2002

Panel: Alan Andison

Keywords: Forest Practices Code of British Columbia Act – ss. 1, 117, 126(1), 127(1), 128(1), 130, 131(8) 138(2); Forest Act – s.81; jurisdiction; preliminary issue; determination; procedural fairness; indemnity

The Forest Practices Board (the “Board”) appealed a decision of a Review Panel confirming the determination of a District Manager that Chetwynd Forest Industries (“Chetwynd”) had contravened the Code and the Timber Harvesting Practices Regulation. The Board appealed on the basis that D & L Enterprises Ltd. (“D & L”), Chetwynd’s timber harvesting contractor, was unfairly excluded from the hearings before the District Manager and the Review Panel. The Commission subsequently requested submissions from the parties on whether the appeal fell within the jurisdiction of the Commission.

The Commission considered three issues in determining whether it had jurisdiction over the appeal. The first was whether D & L was subject of a “determination” within the meaning of the Code. The Commission found that no determination was made against D & L. Rather a determination was made with respect to Chetwynd.

The Commission next considered whether the grounds for appeal and remedy sought by the Board were sufficiently related to the determination and the review decision in question. The Commission found they were not. In particular, the Commission found that the Board did not appeal on the basis of an error in the determination or review decision with respect to whether Chetwynd was responsible for the contraventions, or the penalty imposed on Chetwynd. The Board also sought no remedy in respect of those matters. Further, the Commission found that any adverse effects on D & L’s financial or contractual interests arose directly from the independent decision of Chetwynd to cancel its contract with D & L and seek indemnity from D & L, and not from the determination or review decision.

Lastly, the Commission found that D & L would not be deprived of redress if the Commission did not hear the appeal as the evidence showed that D & L had already initiated mediation proceedings to resolve its contract dispute with Chetwynd, and D & L may be able to pursue a judicial review of the determination or review decision. Accordingly, the Commission found that it did not have jurisdiction to hear the matter. The appeal was dismissed, and the request for costs by Chetwynd was denied.