Decision Date: October 6, 2011

Panel: David Searle, CM, Q.C.

Keywords: Forest and Range Practices Act – ss. 71, 72; Woodlot Licence Forest Management Regulation – s. 77(1); penalty; remediation order; due diligence, silviculture standards; site plan; woodlot licence; regeneration

Charles E. Kucera appealed a determination and a remediation order issued by the District Manager (the “District Manager”), Columbia Forest District, Ministry of Natural Resource Operations (the “Ministry”).  In the determination, the District Manager found that Mr. Kucera contravened section 77(1) of the Woodlot Licence Forest Management Regulation (the “Regulation”) by failing to achieve the stocking standards set out in a site plan for a woodlot that Mr. Kucera harvested in 2001.  The regeneration was to have been completed within 7 years of harvesting.  In 2009, a stocking survey of the woodlot conducted by the Ministry found that the minimum number of stems per hectare of the preferred species had not been achieved.   The District Manager assessed a penalty of $1000 against Mr. Kucera for the contravention.  The District Manager also issued a remediation order requiring Mr. Kucera to complete the regeneration to the minimum stocking standards required in the site plan by July 2011, or alternatively, have the original stocking standards reviewed by a professional forester and submit an amended plan.

Mr. Kucera did not dispute that the minimum number of stems per hectare of the preferred species was not been achieved by 2009.  He appealed on the basis that the defence of due diligence applied to the contravention.  At the appeal hearing, Mr. Kucera agreed with the Government that the appeal of the remediation order need not proceed, because before the appeal was heard, the order expired and a new stocking survey found that the minimum number of preferred stems per hectare had been achieved.

The Commission found that Mr. Kucera had many years and many opportunities to address the stocking requirement on the woodlot, but he failed to do so.  Mr. Kucera argued that natural regeneration was all that was needed, although he admitted that he had cancelled an order for seedlings because he had insufficient funds to pay for the seedlings and their planting after paying his legal fees related to a civil suit.  He also submitted that he could not work due to an injury in 2001, but he provided no medical evidence to establish the seriousness of the injury.  The Commission found that artificial regeneration was required by the site plan.  The Commission considered the legal test for the statutory defence of due diligence, and found that due diligence did not apply in the circumstances of this case.  The Commission concluded that the determination and the penalty should be confirmed.

Accordingly, the appeals were dismissed.