Decision Date: September 19, 2011

Panel: Gabriella Lang

Keywords: Forest Act – ss. 96(1)(a), 97(4); Scaling Regulation – s. 6; check scale; log scaler; review of the record; due diligence; procedural fairness

Cindy Ling appealed a review decision issued by the District Manager (the “District Manager”), Sunshine Coast Forest District, Ministry of Forests and Range (the “Ministry”).  In the review decision, the District Manager confirmed a determination that Ms. Ling had contravened section 96(1)(a) of the Forest Act (the “Act”) by not following the scaling procedures set out in section 6 of the Scaling Regulation.  Specifically, the District Manager concluded that at least one load of logs scaled by Ms. Ling varied by more than three percent in volume or value from the check scale done by Ministry check scalers.  However, the District Manager imposed no penalty for the contravention.  Ms. Ling has worked as an independent log scaler for approximately 20 years.

Ms. Ling appealed the review decision on the basis that the District Manager erred by failing to conclude that new evidence she had provided showed incompetency, bias and procedural errors by the Ministry check scalers, and by failing to consider due diligence as a defence to the contravention.

The Commission first considered whether the appeal should be heard as a review of the record before the District Manager, rather than a new hearing of the matter.  The Commission found that it has broad discretion in how it conducts hearings, and that a review of the record before the District Manager was the appropriate way to hear this appeal.  The Commission noted that its review of the record would include considering the new evidence that was presented to the District Manager, and his assessment of that evidence.

Next, the Commission considered whether the District Manager reasonably determined that Ms. Ling had contravened section 96(1)(a) of the Act.  The Commission found that the District Manager considered the new evidence provided by Ms. Ling, and considered her submissions alleging incompetency, bias and procedural errors by the Ministry check scalers.  The Commission held that the District Manager’s interpretation and application of the evidence, as demonstrated by his findings, was reasonable, and he did not err in that regard.  The Commission also found that Ms. Ling had admitted to at least one scaling procedure contravention.  The Commission concluded that there was no basis for rescinding or varying the review decision on those grounds.

In addition, the Commission found that Ms. Ling did not specifically raise defence of due diligence during the review proceedings before the District Manager, and she did not raise it the appeal proceedings until she submitted her final reply to the Government’s submissions.  Given that the appeal proceeded as a review of the record, and that the Government had no opportunity to respond to her submissions on the defence of due diligence, the Commission rejected that ground for appeal.

The appeal was dismissed