Decision Date: February 19, 1997

Panel: Toby Vigod, Gerry Burch, Bruce Devitt

Keywords: Forest Practices Code of British Columbia Act – s.96(1), s.117, s,118, s.119, s.123, s.127, s.129(4), s.130, s.131, s.143(1), s.157; Forest Act; due diligence; administrative penalties; regulatory offences.

This is an appeal by MacMillan Bloedel (‘MB’) of a review decision which upheld the determination that MB had contravened section 96(1) the Code by unauthorized harvesting of timber. MB is appealing on the grounds that due diligence should be a defence to administrative penalties because such remedies are in the nature of strict liability offences. A preliminary hearing was held on the sole issue of whether the defence of due diligence applies to administrative penalties.

The appellant argued that the rationale and principles of Sault Ste. Marie regarding strict liability offences and the defence of due diligence should apply to the administrative penalty sections of the Code. The Commission disagreed. It found key differences between the regulatory offences considered in Sault Ste. Marie and the administrative penalty regime set out in the Code. The Commission found that the administrative penalties authorized in the Code are not penal in nature, but are linked to the remedial purpose of the legislation even though they may provide for some level of deterrence. While there may be some stigma attached to a penalty assessment, the stigma is different from that associated with criminal and quasi-criminal convictions and an administrative penalty is only one factor that may be taken into consideration in issuing future cutting permits. The Commission found that the Legislature created 2 different systems for dealing with violations of the Code; an administrative penalty system and an offence system. The offence system expressly provides a defence of due diligence. Had the Legislature intended to allow due diligence to be a defence to administrative penalties, it would have included similar provisions in the administrative penalty section. The appeal was dismissed. A date for a hearing on the merits of the case is to be scheduled.