Decision Date: January 23, 2004

Panel: Alan Andison

Keywords: Forest Practices Code of British Columbia Act – ss.67(1), 96(1); unauthorized harvesting; subcontractors; timber salvage; appropriate penalty

Allan Colbourne appealed the District Manager’s determination, as varied by a Review Panel, that he contravened sections 67(1) and 96(1) of the Forest Practices Code of British Columbia Act (the “Code”).  Specifically, the District Manager determined that Mr. Colbourne was responsible for harvesting contrary to regulations, standards, prescriptions or plans, and for cutting 328.431 cubic metres (m³) of Crown timber without authority.  The District Manager assessed a penalty of $18,997.07 for the contraventions.  This determination was upheld by a Review Panel, but the penalty was reduced to $16,700.61.  The Appellant requested that the Commission reduce the penalty to $1000.

The issues in this appeal are:  whether Mr. Colbourne contravened sections 67(1) and 96(1) of the Code; and, whether the penalty was reasonable in the circumstances.

Mr. Colbourne disputed the extent to which he should be held responsible for what occurred.  Mr. Colbourne argued that the Review Panel’s findings that he failed to properly supervise his subcontractors was inaccurate.  In addition, Mr. Colbourne argued the trees that were harvested had to be cut in accordance with rules and regulations of the Worker’s Compensation Board.  He further argued that the Ministry of Forests should accept some responsibility because, if they had conducted the inspections of the logging operation that they were obligated to do, there wouldn’t have been any unauthorized harvesting.  Finally, Mr. Colbourne argued that he doesn’t have the funds to pay the penalty.

The Commission held that Mr. Colbourne did contravene sections 67(1) and 96(1) of the Code.  The Commission found that Mr. Colbourne failed to provide adequate direction to, and supervision of, his subcontractors, and that his lack of reasonable care was the primary cause of the unauthorized harvesting.  In addition, the Commission held that the Ministry of Forests is not obligated to inspect logging operations as a substitute for proper supervision by the person responsible for a logging operation.

Regarding the reasonableness of the penalty, the Commission held that a deterrent penalty and a compensatory penalty were warranted in this case, given Mr. Colbourne’s primary role in the series of contraventions at the sites.  The Commission found that the Review Panel correctly deducted the value of the wood that was seized and sold by the Crown in determining the amount needed to compensate the Crown for the timber that was cut illegally.  However, the Commission found that the evidence was unclear concerning whether Mr. Colbourne received any economic benefit from the contraventions.  Given the circumstance, the Commission found that the significant compensatory penalty and the fact that the contraventions would remain on Mr. Colbourne’s record with the Ministry would provide sufficient deterrence.  Therefore, no further financial penalty was required to remove an economic benefit or provide deterrence.  Furthermore, the Commission held that Mr. Colbourne’s ability to pay should have no bearing on the penalty amount.

Accordingly, the Commission reduced the total penalty to $12,847.54.

The appeal was allowed in part.