Decision Date: February 2, 2007

Panel: David Ormerod

Keywords:  Forest Act – ss. 76(1)(a); licence suspension; armillaria; root rot; material omission of fact; small scale salvage licence; new evidence

Hugh (Barney) Linville appealed a review decision confirming a decision of the Acting District Manager, Southern Interior Forest District, to suspend Mr. Linville’s Forestry Licence to Cut.  The licence authorized Mr. Linville to salvage Crown timber that had been attacked by Douglas-fir bark beetles.  The decision to suspend the licence was made on the ground that there was a “material omission of fact” in Mr. Linville’s licence application, contrary to section 76(1)(a) of the Forest Act.  Specifically, the licence application documents failed to mention the presence of root rot in the proposed salvage timber.  The relevant portion of the licence application had been certified by a registered professional forester acting on Mr. Linville’s behalf.

Mr. Linville argued that the licence should not have been suspended because the presence of root rot made no difference to the harvesting conducted in this case, and was not material to the decision to issue the licence.

The Commission first considered whether the Government could submit new evidence to establish that there had been a material misrepresentation in the licence application.  The Commission found that the new evidence was being tendered to support a new determination, and a new basis for suspension, that was not contained in the decision under appeal.  The Commission found that allowing this evidence at this stage of the proceedings would be inconsistent with procedural fairness, and would place an unfair burden on Mr. Linville.  Consequently, the Commission decided not to consider the new evidence or the claim of material misrepresentation.

The Commission next considered whether there had been a material omission in the licence application that warranted suspending the licence.  The Commission found that question of whether information about the presence of root rot was material to the application is an objective question of fact, and that the Government has the onus of establishing that the omitted information would be material to a reasonable decision-maker in the Acting District Manager’s position.  The Commission found that the information about root rot was material to the decision to issue the licence.   Decision-makers must be able to assess the impact of a licence on future timber harvesting and forest regeneration.  The Commission also found that the root rot on the site was significant, and its presence could have affected the salvage priority given to the licence, the way the site was harvested, and the prescribed treatments for the site.  A forester exercising professional judgment would have recognized that root disease was present at the site, and should have known that it was material to the decision to issue the licence.

Accordingly, the appeal was dismissed.