Decision Date: May 10, 2011

Panel: Alan Andison

Keywords: Forest Act – ss. 105(1); Interior Appraisal Manual; Canadian Forest Products Ltd. v. British Columbia (2009 BCSC 1040); stumpage rate; changed circumstance reappraisal; consent order

Canadian Forest Products Ltd. (“Canfor”) appealed five separate stumpage rate determinations issued between April 2007 and February 2008 by the Timber Pricing Coordinator (the “Coordinator”), Ministry of Forests and Range (the “Ministry”). The appealed determinations were reappraisals of previous stumpage rate determinations that were issued between July 2002 and March 2005. The reappraisals were issued on the basis that a “changed circumstance” had occurred, within the meaning of the Interior Appraisal Manual (“IAM”) in effect at the time. Canfor objected to the reappraisals on the basis that the timber affected by the reappraisals had been harvested and scaled before the reappraisals took effect, and that the changed circumstance reappraisal provisions of the IAM cannot apply retroactively to timber that has already been scaled.

When Canfor filed the appeals, it requested that they be held in abeyance pending the Commission’s final decision on another appeal (2007-FA-023) that dealt with the same issue regarding the IAM’s changed circumstance provisions.

On November 13, 2007, the Commission issued its final decision on appeal 2007-FA-023. Canfor appealed that decision to the BC Supreme Court. The Court issued its decision on July 30, 2009: Canadian Forest Products Ltd. v. British Columbia (2009 BCSC 1040). A further appeal to the BC Court of Appeal was resolved before it was heard.

Meanwhile, the outstanding appeals continued to be held in abeyance while the court proceedings were in progress. Once those proceedings were completed, the parties negotiated an agreement to settle the outstanding appeals based on the BC Supreme Court’s decision.

Accordingly, by consent of the parties, the Commission ordered that the reappraisal determinations were set aside, and the original stumpage rate determinations were restored.

The appeals were allowed, by consent.