Decision Date: December 16, 2009

Panel: David Searle

Keywords:  Forest Practices Code of British Columbia Act – ss. 45(1), 45(3)(a), 63(2); Forest Road Regulation – ss. 9(1)(c)(iv), 13(2)(b); road construction; road maintenance; drainage systems; landslide; due diligence

Tembec Enterprises Ltd. (“Tembec”) appealed a determination of the District Manager, Rocky Mountain Forest District, that Tembec had contravened several sections of the Forest Practices Code of British Columbia Act (the “Code”) and the Forest Road Regulation (the “Regulation”).  The determination was issued following an investigation of a landslide that occurred in March 2007, after heavy rain on snow, on a slope approximately 160 metres below a recently constructed portion of Tembec’s logging road in the Sundown Creek watershed.  The landslide flowed across a Forest Service Road and some debris spilled into Sundown Creek.  The District Manager determined that Tembec had not exercise due diligence to prevent the contraventions from occurring, and he levied administrative penalties totalling $8,000.

Tembec appealed on the basis that the District Manager erred in finding that it had contravened the Code and the Regulation, that it had not exercised due diligence, and in levying the penalties.  Tembec requested that the determination and the penalties be rescinded.

The Forest Practices Board provided submissions on the due diligence defence only.

The Commission found that Tembec did not contravene section 63(2) of the Code, because the evidence established that the road was adequately maintained.  In particular, photographs taken a few days after the landslide showed that the ditches and culverts along the road section in issue were functioning, and there was no sign of significant rutting or water flow on the road surface at that time.  Photographs taken two weeks after the landslide did show rutting and water pooling on the road surface, but the Commission concluded that this was caused by road use after the landslide, and therefore, it could not have contributed to causing the landslide.

The Commission also found that Tembec did not contravene section 13(2)(b) of the Regulation, because the evidence showed that ditches and culverts along the road section functioned as designed, and waterbars were unnecessary for this section of the road.

In addition, the Commission held that it was unable to conclude, on a balance of probabilities, that the landslide and resulting damage to the environment were a result of Tembec’s road maintenance.  There was evidence that the area had experienced naturally occurring slides in the past.  Consequently, the Commission found that Tembec did not contravene section 45(1) of the Code.

Similarly, the Commission concluded that Tembec did not contravene section 45(3)(a) of the Code, because no one had actual knowledge before the landslide occurred that the area had been subject to two natural slides in the past, and Tembec conducted reasonable enquiries of the site and weather conditions before it constructed the road.  There was no evidence to indicate that Tembec’s staff should have known that the road construction and maintenance may directly or indirectly result in a landslide.

The Commission found that Tembec contravened section 9(1)(c)(iv) of the Regulation, because Tembec’s road drainage system failed to prevent water from being directed onto a potentially unstable slope.  Specifically, one of the culverts directed most of the water it conveyed in the opposite direction that was expected, towards an area that was unstable.  However, the Commission concluded that Tembec took reasonable care to prevent the contravention from occurring.  Specifically, the road was constructed to a standard that met or exceeded industry standards, and Tembec’s assessment of the risk of slope failure employed the degree of skill that would reasonably be expected in the circumstances.  The Commission found that it would have been unreasonable to expect Tembec to have been aware of the slight elevation difference that caused most of the water from one of the road culverts to flow towards the unstable area.  Consequently, the defence of due diligence applied to the contravention of section 9(1)(c)(iv) of the Regulation.  Section 119.1(1) of the Code (now section 72 of the Forest and Range Practices Act), states that no person may be found to have contravened the legislation if the person exercised due diligence to prevent the contravention.

In summary, the Commission rescinded the determinations that Tembec had contravened sections 45(1), 45(3)(a), and 63(2) of the Code and section 13(2)(b) of the Regulation.  The Commission also held that Tembec could not be found to have contravened section 9(1)(c)(iv) of the Regulation because Tembec had established the defence of due diligence.

Accordingly, the appeal was allowed.