Decision Date: June 10, 2004

Panel: Alan Andison

Keywords: Forest Act – s. 78; disqualification; failure to meet obligations; timber sale licences; Bark Beetle Regulation – ss. 3,4;

Daniel Marcoux (the “Appellant”) appealed an administrative review decision that varied a decision of the Timber Sales Manager (the “Manager”), Ministry of Forests (“MOF”).  The Manager disqualified the Appellant from the Timber Sales Program for six months for failure to fulfill obligations under a Bark Beetle Timber Sale and Multiphase Licence.  The administrative review decision reduced the disqualification period from six to four months.

The Appellant argued that he failed to meet licence deadlines because of: 1) MOF officials’ delay in approving his plan to harvest beetle-infested trees; 2) cool weather that caused a later-than-expected “flight” of beetles; and 3) exceptional rains at the end of his licence period.  The Appellant further argued that MOF’s requirement that a potential harvest area must contain 30 per cent or more infested trees was arbitrary and unreasonable.

The Commission noted that MOF provided the Appellant with two extensions and waived at least one licence reporting condition to allow for the early “flight” and other circumstances beyond the Appellant’s control.  The Commission found that MOF’s application of a 30 per cent requirement was consistent with regulations and MOF practice, and was not arbitrary or unreasonable.  The Commission noted that the delay in harvest plan approval was due, in substantial part, to the Appellant’s decision to deviate from specified procedures for quantifying infestation and mapping harvest areas.

The Commission did not accept the Appellant’s arguments that heavy rains frustrated the contract between himself and MOF, and that he should be relieved of obligations to compete the licence work by the prescribed deadline.  The Commission found that the weather was not severe enough to have been outside the reasonable anticipation of an experienced professional forester such as the Appellant, who should have made allowances for such a delay in his harvest plan.

The Commission confirmed the disqualification, as varied by the administrative review panel, and dismissed the appeal.