Decision Date: November 12, 1996

Panel: David Perry, David Walkem, Deborah Todd

Keywords: Forest Practices Code of British Columbia Act – sections 67; 117; 129; 130; 131; 137; bias; natural justice; application of Charter; procedural fairness; opportunity to be heard; full disclosure; hearing de novo.

This is an appeal by Tolko Forest Products Ltd. and the Forest Practices Board from a review decision by district manager, Mr. Belik, upholding a determination made by Mr. Miller that Tolko had violated s. 67 of the Forest Practices Code by permitting crossing and logging through the riparian management zone. At issue in the appeal was whether the Commission could only consider the review decision, whether the full panoply of protections outlined in s. 11 of the Charter of Rights should have applied to Tolko and whether there was sufficient notice of the alleged offence and sufficient notice that a determination was being considered. Further arguments were made that there was a lack of full-disclosure of the particulars of the offence, that both decision-makers were biased and that, due to these errors of natural justice, the decision was void and should be sent back for a new determination.

The Commission held that, in hearing the appeal, it was authorized to review the original determination made by Mr. Miller in addition to the decision of Mr. Belik upholding the determination.

The Commission found that the determination is a regulatory procedure which does not attract the full protections accorded by criminal procedure, such as s. 11 of the Charter. The Commission held that Tolko was aware of the facts supporting the alleged violation. However, the Commission found that Tolko was entitled to receive formal written notice that a determination was being considered and that no such notice was given in this case. The Commission held that as a result of this failure, Tolko was unaware that a determination was being made and was thereby denied their right to be heard. The Commission also held that there was not sufficient disclosure to allow meaningful participation in the hearing process as required by natural justice. The Commission rejected the allegations of bias.

The Commission held that as an administrative tribunal with de novo powers, it has the power to cure any procedural deficiencies that occur at a lower level. Accordingly, it held that any errors made by Mr. Miller or Mr. Belik were corrected in the appeal before the Commission. On the evidence presented, the Commission found that the crossings of the riparian management area had occurred and upheld the determination. The appeal was dismissed.