Decision Date: January 17, 2006

Panel: Margaret Eriksson, Richard Cannings, Stephen Willett

Keywords: Forest Practices Code of British Columbia Act – s.96 (1); Forest and Range Practices Act – s.71 (1), (3) and s. 72; due diligence; reasonable care; vicarious liability; unauthorized harvesting

Weyerhaeuser Company Limited (“Weyerhaeuser”) appealed a March 19, 2004 determination of the District Manager that Weyerhaeuser had contravened section 96(1) of the Forest Practices Code of British Columbia Act (the “Code”).  The District Manager levied an administrative penalty of $2,012.  The contravention was the unauthorized harvesting of Crown timber by a subcontracted feller-buncher operator who was working for Red Hot Forestry Services Ltd. (“Red Hot”), which had a contract to harvest cutblock C (“Block C”) under Weyerhaeuser’s Forest Licence.  Weyerhaeuser asked the Commission to rescind the determination on the basis that it had exercised due diligence, which is a defense under section 72 of the Code.

The contravention occurred in January 2002, when the operator felled a total of 55.6 cubic metres (approximately one truck load) of timber outside the cutblock boundaries before he realized he was in the wrong place.  There were no related soil or water impacts.

Several days before the contamination occurred, Weyerhaeuser gave express instructions to Red Hot, to walk the area with the operator prior to beginning the work, to ensure that the feller-buncher could safely go up the slope in the upper part of Block C along the right-of-way.  However, Red Hot did not walk the area with the operator.  Red Hot’s supervisor simply reviewed the map (i.e. the logging plan) with the operator and then sent him out to work.

The Commission first considered whether the appeal could be conducted as a hearing de novo or not.  The entire Commission found that it had the authority to conduct a hearing de novo, and in so doing, could also review the relevant record, as it did in this case.

The majority of the Commission also found that the legal test for the due diligence defence articulated in the Code was already variable in that the weight given to different factors depends on the circumstances of a particular case.  The Commission concluded that it had to apply the standard in its natural and ordinary sense as defined by the case law presented in this case so as not to impose a higher standard tantamount to “absolute liability.”

Last, the majority of the Commission found that, applying this standard, Weyerhaeuser demonstrated that it took all reasonable care in the circumstances of this particular case showing its conduct was duly diligent in the circumstances of this case.

In the last two issues, the minority of the Commission found that Weyerhaeuser had to be held to a higher standard of care and, consequently, found that Weyerhaeuser was not duly diligent.

Accordingly, the majority of the Commission allowed the appeal.