Decision Date: August 20, 2010

Panel: Alan Andison

Keywords:  Forest Act – ss. 105(1), 147(4); Canadian Forest Products Ltd. v. British Columbia, 2010 BCSC 1040; stumpage rate; changed circumstance reappraisal; extension of time; delay

Charanjiv Singh Parmar appealed a stumpage rate determination issued in May 2009 by the Timber Pricing Officer (the “Officer”), Prince George Forest District, Ministry of Forests and Range (the “Ministry”).  The determination resulted from a reappraisal of a stumpage rate determination originally issued in October 19, 2004, for a cutting permit issued under a woodlot licence.  The rate was reappraised by the Ministry on the basis that there had been a “changed circumstance”; that is, when the Ministry inspected the cutting permit area, it found that some of the work claimed as development cost estimates in the original appraisal had not been done.  The reappraisal resulted in a reduction in estimated development costs, and an increase in the stumpage rate from $23.76 per cubic metre to $36.60 per cubic metre on sawlogs scaled between July 15 and September 30, 2004.  The reappraisal was issued long after stumpage had been paid, at the original stumpage rate, on the harvested timber.

In July 2010, Mr. Parmar appealed the reappraisal on the grounds was made without jurisdiction, as confirmed in a BC Supreme Court decision released on July 30, 2009 (Canadian Forest Products Ltd. v. British Columbia, 2010 BCSC 1040) (“Canfor”).  With his notice of appeal, he submitted an application for an extension of time to file his appeal, because the appeal was filed approximately 24 months after the reappraisal was issued, which is well after the expiry of the three-week statutory appeal period.

Before the Commission accepted the appeal, it requested submissions from the parties on whether an extension of time should be granted in this case.

Mr. Parmar submitted that an extension should be granted.  He submitted that, when he received the reappraisal notice, he did not appreciate that it constituted a change to the stumpage that had been paid, nor did he appreciate that it was a changed circumstance reappraisal.  He also submitted that the Canfor decision applied in this case, and it confirmed that the applicable provision of the Interior Appraisal Manual (“IAM”) was ultra vires the Minister’s authority to the extent that it purported to authorize the variation of stumpage payable on timber that had already been scaled and invoiced.  Mr. Parmar argued that Canfor applied because his case is also one where the Ministry attempted to retroactively vary the stumpage rate applicable to timber on which stumpage has already been invoiced and paid.  Mr. Parmar maintained that he became aware of the Canfor decision in November or December 2009, but did not fully appreciate that it applied to his situation until sometime later.  He submitted that there was no prejudice to the Ministry in permitting the appeal to proceed, whereas there would be significant prejudice to him if the appeal is rejected, because the Ministry would be able to enforce a judgment against him that is founded on an invalid provision of the IAM (per Canfor).

The Government submitted that the extension of time should be denied, because the reappraisal notice was clear and it set out the three-week appeal period.  The Government argued that there was no adequate explanation for the delay in filing the appeal.  It submitted that this was not a case of an intention to appeal being formed and then some oversight or slip resulted in a delay; rather, there was complete inattention by Mr. Parmar to his affairs for a protracted period.  In addition, the Government submitted that it would suffer prejudice if an extension was granted in this case.

The Commission found that there was no compelling reason in this case to grant an extension of time.  The Commission held that Mr. Parmar showed no diligence in pursuing an appeal, even after he became aware of the Canfor decision.  He claimed that he did not appreciate that the reappraisal notice constituted a change to the stumpage that had been paid, but it appears that he did nothing to determine what the notice was for or what it related to.  He took no proactive steps to determine the meaning or impact of this notice; whether it was issued in error or whether it had to be attended to.  Rather, it was not until the Government undertook steps to enforce collection from him, by registering a judgment against his home, that he paid attention to the matter.  Simply put, he ignored the notice until he was faced with the consequences of his inaction.  To allow an extension in a case where the only explanation for much of the delay is a lack of appreciation or understanding of the determination, and where the person takes no positive action to gain an appreciation or understanding, would render the appeal period virtually meaningless.

In addition, the Commission held that, although the Canfor decision puts into question the validity of the notice, this is a matter for Mr. Parmar to negotiate with the Ministry.  Aside from the fact that Mr. Parmar showed no diligence when he learned of the Canfor decision, an extension of time would have a significant effect on the Government.

Accordingly, the application for an extension of time was denied, and the appeal was rejected as out of time.