Decision Date: November 13, 2008

Panel: Alan Andison

Keywords:  Forest Practices Code of British Columbia Act – ss. 131(1), 131(4), 131(5); jurisdiction; limitation period; delay; check scale

Ms. Ling has held a timber scaling licence for over 20 years, and works as an independent timber scaler.  Over a period of approximately six months in 2006, check scalers from the Ministry of Forests and Range (the “Ministry”) check scaled ten parcels of timber that Ms. Ling had scaled.  Check scales involve remeasuring the loads of logs scaled by the original scaler and comparing scale results in terms of log volume and value.  If the volume or value between the check scale and original scale varies by more than 3 percent, section 97(4) of the Forest Act requires that the check scale replace the original scale.  Of the ten parcels that were check scaled, six of Ms. Ling’s original scales were cancelled and replaced with the check scales.

In March 2007, the District Manager determined that Ms. Ling had contravened section 96(1) of the Forest Act by not following the scaling procedures prescribed in section 6 of the Scaling Regulation.  The District Manager levied no penalty for the contravention.

In June 2007, Ms. Ling filed a civil action in the BC Supreme Court against the Province alleging, among other things, negligence in relation to the check scales.  In March 2008, the Court dismissed Ms. Ling’s civil claim on the basis that it constituted an impermissible collateral attack on the District Manager’s determination.

In August 2008, Ms. Ling filed an appeal with the Commission against the District Manager’s determination.  The appeal was filed approximately 16 months after the expiry of the 3-week statutory limitation period for appealing the determination.  Under section 131(5) of the Forest Practices Code of British Columbia Act (the “Code”), failure to deliver a notice of appeal within the 3-week period leads to the loss of the right to an appeal.  However, pursuant to section 131(4) of the Code, the Commission may extend the time for filing an appeal.  Ms. Ling requested that the Commission extend the deadline for filing her appeal.

The Commission considered the reasons for the delay in filing the appeal, the potential prejudice to Ms. Ling if the appeal was rejected, and the potential prejudice to the Government if the appeal was accepted despite the delay.

The Commission found that Ms. Ling’s rights and obligations regarding filing an appeal were clearly set out in the District Manager’s determination, and she had the benefit of legal advice on the matter since at least February 2007.  Ms. Ling’s explanation for her failure to file an appeal within the time limit was that the Ministry had failed to respond to her in a timely way and withheld relevant information from her until it was disclosed in December 2007 as part of the civil action.  However, the Commission found that Ms. Ling did not file an appeal with the Commission in a timely manner once that information was disclosed, nor did she do so after her civil action was dismissed despite forceful direction from the Court that she should have pursued the matter through the appeal process.

The Commission considered the fact that not extending the time limit for filing the appeal would leave Ms. Ling with no right to an appeal.  However, the Commission found that the prejudice to Ms. Ling as a result of having her appeal rejected was mitigated by the fact that the determination imposed no penalty on her.  In addition, the Commission held that accepting the appeal would prejudice the Government by causing it to expend additional expense.  Also, the Commission found that, if it accepted the appeal, the delay may adversely affect the Government’s ability to present its case because the District Manager had retired from the Ministry.  Finally, the Commission found that rejecting the appeal would have no adverse effect on the environment or forest resources.

Accordingly, the appeal was rejected for being filed out of time.