Decision Date: October 12, 2010

Panel: Alan Andison

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

Western Forest Products Inc. (“Western”) appealed two separate stumpage rate determinations issued in 2004 by the Regional Appraisal Coordinator (the “Coordinator”), South Island Forest District, Ministry of Forests and Range (the “Ministry”).  The determinations were reappraisals that applied to sawlogs scaled between February 29 and March 31, 2004, pursuant to two cutting permits (“CPs”) held by Western on Vancouver Island.

In August 2010, Western appealed the determinations on the grounds that the Coordinator erred by using the Jordan River log dump rather than the Otter Point log dump as the appraisal log dump and point of origin, and by using the haul distance to Jordan River, in the reappraisals.  Western submitted that its objection to using Jordan River was confirmed in a BC Court Appeal decision released in August 2009 (Western Forest Products Inc. v. HMTQ, 2009 BCCA 354) (“Western”). Western applied to the Commission for an extension of time to file the appeals, because the appeals were filed over 6 years after the determinations were issued, which is well after the expiry of the three-week statutory appeal period.

Before the Commission accepted the appeals, it requested submissions from the parties on whether the applications for an extension of time should be granted.

Western submitted that the applications should be granted.  It submitted that that the Commission had previously granted extensions and accepted other appeals filed by Western pertaining to similar determinations issued in 2004.  Western argued that the present appeals were “inadvertently omitted” from the group of appeals it filed in 2005 and 2006 involving similar determinations.  In addition, Western explained that it had expected the Ministry to correct and reissue the present determinations after the Court issued its decision in Western, and Western was not notified by the Ministry until July 2010 that the determinations would not be reissued.  Further, Western submitted that granting the extensions would not prejudice the Government.

The Government submitted that Western’s excuses were insufficient to warrant extensions of time, and that granting extensions in these circumstances would cause prejudice to the Government.

The Commission found that Western’s delay in filing these appeals was likely due to an error or inadvertence, as it had filed a number of appeals of similar determinations in 2005 and 2006.  The Commission held that, although the present appeals could still be heard together with the appeals filed in 2005 and 2006, which had been held in abeyance at the parties’ request, other factors weighed in favour of denying the extensions of time.  Specifically, the Commission found that the Government would be prejudiced due to the uncertainty created by accepting the appeals after such a lengthy delay.  The Commission also held that accepting the appeals when the lengthy delay was caused simply by inadvertence or error would defeat the purpose of the limitation period.

Accordingly, the applications for an extension of time were denied, and the appeals were rejected as out of time.