Decision Date: October 12, 2007

Panel: Alan Andison

Keywords: Forest Practices Code of British Columbia Act – s. 96(1), s. 97(2); Forest and Range Practices Act – s. 72(a), s. 72(b), s. 72(c), s. 75; limitation period; due diligence; mistake of fact; officially induced error

Mr. Hegel is the president of 449970 B.C. Ltd., which owns property near Avola, B.C. In dispute in this appeal were the boundaries of the property, and whether the area, referred to as “Area A”, that was logged by the company was located within property boundaries, or on Crown land.

In 2005, the District Manager, Headwaters Forest District, Ministry of Forests and Range, determined that the Appellants had contravened sections 96(1) and 97(2) of the Forest Practices Code of British Columbia Act (the “Code”) by failing to properly ascertain the boundaries of Mr. Hegel’s property and harvesting Crown timber without authority. A total penalty of $132,897.40 was levied.

The Appellants appealed on the grounds that they exercised due diligence, that they were under a mistake of fact in attempting to locate the property boundary, that their actions were the result of an officially induced error and that the penalty was excessive. They asked the Commission to rescind the determination, or, alternatively, to vary it or rescind it to the extent that it imposed a penalty.

The Commission first considered whether the limitation period in section 75 of the Forest and Range Practices Act (the “Act”) prevented the imposition of a penalty in this case. Section 75 provides that an administrative penalty must be levied within 3 years from the “date on which the facts that lead to the determination that the contravention occurred first came to the knowledge of an official.” In this case, the date the administrative penalty was issued exceeded the limitation period. However, the Commission found that Mr. Hegel had expressly waived the Appellants’ right to rely on the limitation period and had notified the District Manager of that waiver.

The Commission then considered whether the Appellants had contravened the Code by failing to ascertain the boundaries of the property. The Commission accepted the expert evidence adduced by the Government, which indicated that Area A was located completely outside of the property and on Crown land. The Commission noted that the evidence provided by the Appellants’ surveyor also indicated that Area A was on Crown land. The Commission also found that the Appellants’ attempt to ascertain the boundaries was inadequate and resulted in the unauthorized harvest of Crown timber from Crown land.

The Commission then considered whether the Appellants had established a defence of due diligence. The Commission adopted the test for the statutory defence of due diligence that was set out in its previous decision in Weyerhaeuser Company Ltd. v. Government of British Columbia (Forest Practices Board, Third Party) (Decision No. 2004-FOR-005(b), January 17, 2006).

In that regard, the Commission found that it was reasonably foreseeable that the boundaries may not be properly ascertained and that this could result in unauthorized harvesting. The Commission also found that the gravity of the potential harm to Crown timber (and possibly the environment) was high, that the Appellants knew that a failure to properly determine the boundaries could have serious consequences, and that they should have known that the likelihood of potential harm was high. The Commission also determined that having a professional survey by a BC Land Surveyor was an “available alternative” to protect against the potential harm, and would have been a reasonable step to take in the circumstances.

In sum, the Commission found that, although Mr. Hegel made an effort to ascertain the boundaries, his actions were inadequate to establish the defence of due diligence. More specifically, he had failed to locate corner pins and to measure all of the boundaries against previous survey notes.

The Commission also found that the defence of mistake of fact had not been established. For the defence to apply, the Appellants needed to prove that they reasonably (but mistakenly) believed in the existence of facts, which, if true, would establish that they did not contravene the Code. The Commission determined that it was not reasonable for Mr. Hegel to conclude that he had properly ascertained the boundaries of the property.

Similarly, the Commission found that the defence of officially-induced error did not apply to this case, as the Appellants had not sought and relied upon official advice at any time when attempting to ascertain the boundaries.

Finally, the Commission considered whether the penalty was appropriate in the circumstances. The Commission confirmed that the contraventions were substantial, as the Appellants’ failure to properly ascertain the lot boundaries had resulted in approximately 1800 cubic metres of Crown timber being removed from Area A without authority. Therefore, the Commission determined that a significant monetary penalty was warranted to compensate the Crown for its losses and to remove the economic benefit derived by the Appellants.

The Commission reduced the total penalty slightly, to $132,480.98, based on new evidence submitted by the Government, which applied a slightly higher appraisal value to a slightly lower volume of timber harvested.

Therefore, the Commission confirmed the contravention but varied the penalty. The appeal was dismissed.