Decision Date: April 7, 2010

Panel: Alan Andison

Keywords:  Forest and Range Practices Act – s. 71(5); Timber Harvesting and Silviculture Practices Regulation – s. 46; forest cover inventory reporting; remediation order; penalty

Meadow Creek Cedar Ltd. (“Meadow Creek”) appealed a determination and a remediation order issued by the District Manager, Kootenay Lake Forest District, Ministry of Forests and Range.  The District Manager determined that Meadow Creek had contravened section 46 of the Timber Harvesting and Silviculture Practices Regulation (the “Regulation”) 21 times by failing to report forest cover inventory for 21 separate openings, and he levied administrative penalties of $100 per contravention, for a total penalty of $2,100.  The remediation order required Meadow Creek to submit the required reporting by May 15, 2009.

Meadow Creek did not dispute that it was responsible for the contraventions, nor did it claim any statutory defences.  Meadow Creek appealed on the basis that the penalties would be detrimental to the company’s survival, and that the reporting had since been completed and steps had been taken to keep the reporting up-to-date.  Meadow Creek requested that the Commission reduce the penalties.

The Commission found that the remediation order should be confirmed because the evidence established that the order was warranted when it was issued.  In particular, Meadow Creek had received several warnings that it was out of compliance with its reporting requirements, and it remained out of compliance when the remediation order was issued.  The Commission found that the fact that the reporting had since been completed was irrelevant to whether the remediation order should have been issued.

In addition, the Commission found that the penalties were appropriate in the circumstances.  The Commission found that economic hardship is not one of the factors which must be considered when levying a penalty.  Further, the Commission held that the evidence established that the contraventions were repeated, continuous and deliberate, and that a penalty was needed to provide both specific deterrence against Meadow Creek and general deterrence to discourage others who may consider failing to report.  The Commission found that the penalty of $100 per contravention was nominal, and was appropriate given that Meadow Creek had no previous contraventions of this nature, Meadow Creek derived no economic benefit from the contraventions, and the contraventions caused no damage to public forest resources.  The Commission held that it was irrelevant that Meadow Creek had since completed the reporting, and the Commission noted that there was evidence that Meadow Creek continued to be non-compliant with certain reporting requirements while the appeals were being heard.  Consequently, the Commission confirmed the penalties.

Accordingly, the appeals were dismissed.