Court of Appeal for British Columbia Decisions -
Summaries
Ronald Edward Hegel and 449970 B.C. Ltd. v. British Columbia (Ministry of
Forests and the Forest Appeals Commission)(Forest Practices Board, Intervenor)
Decision date:
November 8, 2011
Court:
BCCA; Justices
Donald, D. Smith and Bennett
Cite:
2011 BCCA 446
Ronald Edward Hegel
and 449970 B.C. Ltd. (the “Appellants”) appealed a
decision of the BC Supreme Court that had dismissed an
appeal from decision of Forest Appeals Commission (the
“Commission”).
The Supreme Court had upheld the Commission’s
decision in Ronald
Edward Hegel and 449970 B.C. Ltd. v. Government of
British Columbia (Decision
No. 2005-FOR-009(a), October 12, 2007).
The Appellants’
appeal to the Commission was against a determination
issued by the District Manager, Ministry of Forests and
Range. The
District Manager found that the Appellants had
contravened sections 96(1) and 97(2) of the
Forest Practices
Code of British Columbia Act, by failing to
ascertain the boundaries of their private property, and
harvesting Crown timber without authority.
The District Manager levied administrative
penalties totalling $132,897.40 against the Appellants.
The Appellants appealed to the Commission on the
grounds that they had exercised due diligence in
attempting to locate the property boundaries, that they
were under a mistake of fact regarding the boundaries,
that their actions resulted from an officially induced
error, and that the penalty was excessive.
The Commission
considered a great deal of evidence regarding the
boundaries of the Appellants’ property, including modern
and historical surveying reports.
The Commission concluded that the Appellants had
failed to correctly locate the northern boundary of the
property, and the defences of due diligence and mistake
of fact did not apply in the circumstances.
The Commission confirmed the District Manager’s
determination, except for making a small adjustment to
the penalty amount.
The Appellants
appealed the Commission’s decision to the BC Supreme
Court, based on four grounds for appeal.
The Supreme Court concluded that: (1) the
Commission made no error of law in reaching its
conclusion about the location of the northern boundary
of the Appellants’ property and in concluding that the
alleged area of unlawful harvesting was Crown land; (2)
although the Commission had misstated Mr. Hegel’s
evidence as to the starting point of his investigation
of the property boundary, the Commission’s decision
would not and should not have been any different; (3)
the Commission did not misapprehend the evidence
concerning the Appellants’ due diligence in trying to
determine the location of the boundary; and (4) the
Commission did not err in law in its approach to the
defence of mistake of fact.
Accordingly, the
Supreme Court dismissed the appeal (Ronald
Edward Hegel and 449970 B.C. Ltd. v. Province of British
Columbia (Ministry of Forests and Range),
2009 BCSC
863).
The Appellants
sought leave to appeal to the BC Court of Appeal.
A Chambers Judge for the Court of Appeal denied
the application for leave to appeal, on the basis that
the appeal raised questions of mixed fact and law, and
therefore, was not properly before the BC Supreme Court
(Hegel v. British
Columbia (Ministry of Forests and Forest Appeals
Commission), 2009 BCCA 527).
The Appellants
applied to vary the Chambers Judge’s order denying leave
to appeal. A
panel of three Court of Appeal judges granted leave to
appeal on two questions of law: (1) was he entitled to
rely on dimensions in the original Crown grant; and (2)
did the Commission treat due diligence and mistake of
fact as equivalent defences? (Hegel
v. British Columbia (Ministry of Forests and Forest
Appeals Commission), 2010 BCCA
289).
On the merits of
the appeal, the Court of Appeal found that sections 1
and 2 of the Land
Survey Act provide that the survey markers
(monuments) establish the boundaries of land, not what
is described in the title documents.
Consequently, Mr.
Hegel was not entitled to rely on dimensions in the
original Crown grant. In
addition, the Court held that the Commission considered
the defences of due diligence and mistake of fact
separately, and nothing in the Commission’s decision
indicates that the Commission treated the defences as
equivalent. Accordingly,
the appeal was dismissed, and the Commission’s decision
was upheld.
Ronald Edward Hegel and 449970 B.C. Ltd. v. British Columbia (Ministry of
Forests and the Forest Appeals Commission)
Decision date:
June 10, 2010
Court:
BCCA; Justices
Newbury, Huddart, and Saunders
Cite:
2010 BCCA 289
Ronald Edward Hegel and 449970 B.C. Ltd. (the
“Appellants”) sought a review of a decision by a
Chambers Judge in the BC Court of Appeal denying leave
to appeal a decision of the BC Supreme Court. The BC
Supreme Court had dismissed
an appeal from decision of Forest Appeals Commission
(the “Commission”) which found that the Appellants had
harvested Crown timber without authority contrary to the
Forest Practices Code of British Columbia Act
(the “Code”).
The decision at stake was the
Commission’s decision in
Ronald Edward Hegel and 449970
B.C. Ltd. v. Government of British Columbia,
Decision No. 2005-FOR-009(a), issued on October 12,
2007. The Appellants had appealed a determination by the
District Manager, Ministry of Forests and Range, that
they had contravened sections 96(1) and 97(2) of
the Code by failing to ascertain the boundaries
of their private property and harvesting Crown timber
without authority. The
District Manager levied administrative penalties
totalling $132,897.40. The Appellants appealed
to the Commission on the grounds that they had exercised
due diligence in attempting to locate the property
boundaries, that they were under a mistake of fact
regarding the boundaries, that their actions resulted
from an officially induced error, and that the penalty
was excessive. The Commission
considered a great deal of evidence regarding the
boundaries of the Appellants’ private property,
including modern and historical surveying reports, and
confirmed the District Manager’s determination,
except for making a minor adjustment to the penalty
amount.
The
Appellants appealed the Commission’s decision to the BC
Supreme Court. The Appellants raised four grounds for
appeal. With respect to the first ground of appeal, the
trial judge concluded that the Commission made no error
of law in reaching its conclusion about the location of
the northern boundary of the Appellants’ property and in
concluding that the alleged area of unlawful harvesting
was Crown land. As to the second ground of appeal, the
judge found that the Commission had misstated
Mr. Hegel’s evidence as to the starting point of his
investigation of the property boundary. However, the
judge concluded that the Commission’s decision would not
and should not have been any different.
Regarding the third ground of appeal, the
judge found that the Commission did not misapprehend the
evidence concerning the Appellants’ exercise of due
diligence in their efforts to determine the location of
the boundary.
Lastly, the judge found that the
Commission did not err in law in its approach to the
defence of mistake of fact. Accordingly, the Court
dismissed the appeal (Ronald
Edward Hegel and 449970 B.C. Ltd. v. Province of British
Columbia (Ministry of Forests and Range),
2009 BCSC 863).
The Appellants sought leave to appeal to the BC Court of
Appeal. A Chambers Judge for the Court of Appeal held
that the legislation enabling
appeals of the Commission’s decisions to the BC Supreme
Court only permits appeals on questions of pure law and
jurisdiction. The Chambers Judge considered the grounds
for appeal before the BC Supreme Court, and held that
they did not raise questions of law; rather, they raised
questions of mixed fact and law. The Chambers Judge
also held the right of appeal on questions of law does
not include a right of appeal on questions of mixed fact
and law. Consequently, the Chambers Judge concluded
that the appeal was not properly before the BC Supreme
Court. Accordingly, the application for leave to
appeal was dismissed (Hegel v. British Columbia
(Ministry of Forests and Forest Appeals Commission),
2009 BCCA
527).
The Appellants then applied to vary the Chambers Judge’s
order denying leave to appeal. Sitting as a panel of
three judges, the Court of Appeal
held that two
issues raised by the Appellants were questions of law;
namely, whether the measurement descriptions of the
original survey of the land must be given effect, and
the legal characteristics of the defences of due
diligence and mistake of fact as set out in section 72
of the Forest and Range Practices Act. The
Court also held that these questions were important to
the community and had sufficient merit to warrant the
granting of leave to appeal. Accordingly, the Court
allowed the application and granted leave to appeal.
Forest Appeals Commission and Her Majesty the
Queen in Right of the Province of British Columbia v. Canadian Forest Products
Ltd.
Decision Date:
December 10, 2009
Court:
BCCA; Madam Justice
Rowles
Cite:
Court of Appeal File
No. CA037429
The Forest Appeals Commission and Her Majesty the Queen
in Right of the Province of British Columbia (the
“Province”) each sought leave from the BC Court of
Appeal to appeal a decision of the BC Supreme Court,
which had allowed an appeal
by Canadian Forest Products Ltd. (“Canfor”) of a
decision issued by the Commission.
In Canadian Forest Products Ltd. v. Government of
British Columbia,
Decision No. 2007-FA-023(a), dated November 13,
2007, the Commission had confirmed a reappraisal of a
stumpage rate that applied to timber harvested under a
cutting permit issued to Canfor. The reappraised
stumpage rate was set out in a stumpage advisory notice
issued in March 2007 by a Timber Pricing Officer with
the Ministry of Forests and Range (the “Ministry”). The
reappraisal was triggered when the Ministry determined
that there had been a “changed circumstance” as defined
in the Interior Appraisal Manual (“IAM”). The
reappraised stumpage rate was higher than the rate set
in the stumpage notice sent to Canfor when the cutting
permit was issued. The reappraised rate was effective
from January 16 to March 31, 2005, which meant that it
was backdated to apply to timber that had already been
harvested and scaled.
Canfor had appealed to the Commission on the basis that
the reappraised rate could not apply to timber that had
already been scaled. Canfor argued that the section 103
of the Forest Act precludes the retroactive
reappraisal of stumpage on timber that has already been
scaled. Canfor submitted that the IAM is a form of
subordinate legislation created under the Forest Act,
and as such cannot conflict with the Forest Act.
Canfor argued that section 2.4.1 of the IAM conflicts
with section 103(1) of the Forest Act, and
therefore, is ultra vires the Forest Act.
Canfor submitted that the Commission must refuse to
apply section 2.4.1 of the IAM, and rescind the
reappraised stumpage rate.
The Commission found that section 2.4.1 of the IAM does
not conflict with section 103(1) of the Forest Act.
The Commission held that stumpage rates are determined
under section 105 of the Act, and those rates are
then applied pursuant to section 103(1) of the Act.
Section 103(1) focuses on the calculation of the amount
of stumpage owing, rather than the rate of stumpage, and
section 103(1) does not limit the timing of the
determination or redetermination of stumpage rates.
Section 103(1) refers to the stumpage rate applicable
under section 105, which says that “rates of stumpage
must be determined, redetermined and varied …” in
accordance with the IAM. Section 2.4.1 of the IAM
permits the reappraisal of stumpage applicable to timber
that has already been scaled. On that basis, the
Commission confirmed the reappraised stumpage rate and
dismissed the appeal.
Canfor appealed the Commission’s decision to the BC
Supreme Court. Before the Court, Canfor again argued
that section 2.4.1 of the IAM is ultra vires the
Forest Act because it conflicts with section
103(1) of the Act by permitting the retroactive
application of a reappraised stumpage rate to timber
that has already been harvested and scaled.
In Canadian Forest Products Ltd. v. British Columbia
and the Forest Appeals Commission,
2009
BCSC 1040, the Court allowed Canfor’s appeal. The
Court first considered the standard of review that
applied to the Commission’s decision. The Court applied
the test set out in Dunsmuir v. New Brunswick,
2008 SCC 9, and found that the standard of correctness
applies when reviewing pure questions of law. The Court
found that the issue in this case was a question of law;
namely, the appropriate interpretation of sections 103
and 105 of the Forest Act. The Court held that
this issue did not directly engage the Commission’s
specialized expertise, and therefore, the appropriate
standard of review in this case is correctness.
The Court then reviewed sections 103 and 105 of the
Forest Act. The Court found that section 103 (1)(c)(i)
of the Forest Act contains a mandatory
requirement that the amount of stumpage payable must be
calculated based on the rate of stumpage applicable to
the timber under section 105 at the time that the timber
is scaled. Section 103(1)(c) contemplates the
application of stumpage rates only on a prospective
basis, to timber that has not yet been scaled. Section
103(1) is not subject to section 105, although it is
expressly subject to other sections of the Forest Act.
Reading sections 103 and 105 together in the context of
the Act, the Court found that the Minister’s
power to redetermine stumpage rates under section 105(1)
does not authorize the re-opening of completed stumpage
assessments under section 103(1). Moreover, the Court
held that it is reasonable to assume that the
legislature intended some measure of finality to the
calculation of stumpage owing under section 103(1),
subject to the limited exceptions stated in the
Forest Act.
Next, the Court considered the relationship between the
IAM and sections 103 and 105 of the Forest Act.
The Court held that the IAM is a form of subordinate
legislation enabled by the Forest Act, and as
such it is presumed to be inoperative to the extent that
it conflicts with the Forest Act. The Court held
that section 2.4.1(1) of the IAM conflicts with sections
103 and 105 of the Forest Act, in that it
purports to allow the Ministry to apply a stumpage
reappraisal retroactively to timber that has already
been scaled. Consequently, the Court held that section
2.4.1(1) of the IAM is ultra vires the Forest
Act, and the Commission erred in finding that there
was no conflict between section 103 of the Forest Act
and section 2.4.1 of the IAM.
In conclusion, the Court ordered that the Commission’s
decision was stayed, and the stumpage advisory notice
issued by the Timber Pricing Officer was rescinded. The
Court also declared that section 2.4.1 of the IAM is
ultra vires the Forest Act to the extent that
it purports to vary the stumpage payable on timber that
has already been scaled.
The Province and the Commission each sought leave from
the BC Court of Appeal to appeal the judgement of the BC
Supreme Court. Both applications for leave to appeal
were granted on December 10, 2009.
Before the BC Court of Appeal heard the appeal, the
parties reached an agreement to adjourn the appeals
generally, by consent.
Ronald Edward Hegel
and 449970 B.C. Ltd. v. Her Majesty the Queen in Right of the
Province of British Columbia as represented by the Minister of Forests and The Forest Appeals Commission
Decision Date:
November 25, 2009
Before:
Kirkpatrick, J.
Cite:
2009 BCCA
527
Ronald Edward Hegel and 449970 B.C. Ltd. (the
“Appellants”) sought leave to appeal a decision of the
British Columbia Supreme Court dismissing
an appeal from decision of Forest Appeals Commission
(the “Commission”) which found that the Appellants had
harvested Crown timber without authority contrary to the
Forest Practices Code of British Columbia Act
(the “Code”).
The decision at stake was the
Commission’s decision in
Ronald Edward Hegel and 449970
B.C. Ltd. v. Government of British Columbia,
Decision No.
2005-FOR-009(a), issued on October 12, 2007. The
Appellants had appealed a determination by the
District Manager, Ministry of Forests and Range, that
they had contravened sections 96(1) and 97(2) of
the Code by failing to ascertain the boundaries
of their private property and harvesting Crown timber
without authority. The
District Manager levied a total of $132,897.40 in
administrative penalties. The Appellants appealed to
the Commission on the grounds that they had exercised
due diligence in attempting to locate the property
boundaries, that they were under a mistake of fact
regarding the boundaries, that their actions resulted
from an officially induced error, and that the penalty
was excessive. The
Commission considered a great deal of evidence regarding
the boundaries of the Appellants’ private property,
including modern and historical surveying reports, and
confirmed the District Manager’s determination,
except for making a minor adjustment to the penalty at
the request of the Government.
The
Appellants appealed the Commission’s decision to the BC
Supreme Court. The Appellants raised four grounds for
appeal. With respect to the first ground of appeal, the
trial judge concluded that the Commission made no error
of law in reaching its conclusion about the location of
the northern boundary of the Appellants’ property and in
concluding that the alleged area of unlawful harvesting
was Crown land. As to the second ground of appeal, the
judge found that the Commission had misstated
Mr. Hegel’s evidence as to the starting point of his
investigation of the property boundary. However, the
judge concluded that the Commission’s decision would not
and should not have been any different.
Regarding the third ground of appeal, the
judge found that the Commission did not misapprehend the
evidence concerning the Appellants’ exercise of due
diligence in their efforts to determine the location of
the boundary.
Lastly, the judge found that the
Commission did not err in law in its approach to the
defence of mistake of fact. Accordingly, the Court
dismissed the appeal (Ronald
Edward Hegel and 449970 B.C. Ltd. v. Province of British
Columbia (Ministry of Forests and Range),
2009 BCSC 863).
The Appellants then sought leave to appeal to the BC
Court of Appeal. The Court of Appeal held that the
legislation enabling appeals of the Commission’s
decisions to the BC Supreme Court only permits appeals
on questions of pure law and jurisdiction. The Court of
Appeal considered the four grounds for appeal that were
before the BC Supreme Court, and held that those grounds
for appeal did not raise questions of law; rather, they
raised questions of mixed fact and law. The Court also
held the right of appeal on questions of law does not
include a right of appeal on questions of mixed fact and
law. Consequently, the Court concluded that the appeal
was not properly before the BC Supreme Court.
Accordingly, the application for leave to appeal was
dismissed.
Western Forest Products Limited v. Her Majesty the Queen in Right of the
Province of British Columbia as represented by the Minister of Forests and Range and
the Forest Appeals Commission
Decision Date:
August 13, 2009
Before:
Newbury, J., Low, J., K. Smith, J.
Cite:
2009 BCCA
354
Western Forest Products Limited (“Western”) appealed a
decision of the British Columbia Supreme Court
allowing an appeal from
decision of Forest Appeals Commission (the “Commission”)
regarding the calculation of transportation costs for
the purposes of assessing stumpage under the Forest
Act. The decision at stake was the Commission’s
decision in Western Forest Products Ltd. v.
Government of British Columbia,
Decision No.
2004-FA-003(c), dated September 21, 2005. The
decision involved an appeal by Western of a
determination by the District
Manager, Ministry of Forests and Range, that a log dump
used by Western near Jordan River was a suitable log
dump for the purposes of determining the stumpage rate
applicable to timber harvested by Western near Jordan
River. The
issue before the Commission was whether,
in determining the stumpage rate, the log dump at Jordan
River was “unsuitable” for the purpose of calculating
Western’s transportation cost estimates.
The Commission found that the stumpage rate should be
determined based on the assumption that Western was
using a log dump in Sooke rather than the one at Jordan
River, despite the fact that the Jordan River log dump
involved a shorter truck hauling distance and was the
one that Western actually used for timber harvested in
that area.
The Commission accepted evidence provided
by Western’s witnesses that the concept of licensee
neutrality is a fundamental principle in stumpage
appraisals under the CAM. The Commission held that,
under the CAM, harvesting costs are to be estimated
independent of the actual circumstances of a particular
licensee, and are to be based upon what would be done by
a notional average operator. There was undisputed
evidence that the Jordan River log dump’s capacity is
limited and that Western fully utilized the log dump,
such that there was no capacity in the log dump to
service any other licensee. On that basis, the
Commission concluded that the Jordan River log dump was
not suitable for use by a notional average
operator because it has constraints that prevent a
notional, average operator from having access to
it. Since an appraisal is based on estimated costs of
a notional average operator, if Jordan River is
unsuitable as an appraisal log dump for the notional
average licensee, it must be unsuitable for all. It
would be unfair to appraise all other licensees in the
area to another log dump but appraise Western to Jordan
River.
The Province appealed the Commission’s
decision to the BC Supreme Court. In
British Columbia (Minister of Forests and Range) v.
Forest Appeals Commission,
2007 BCSC 696,
the Court held that
the issue before the Commission was a question of law,
and that the appropriate standard of review lay between
reasonableness simpliciter and correctness, but
closer to reasonableness simpliciter.
Further, the
Court determined that the evidence of the witnesses
before the Commission appeared to be more argument and
conclusion than statements of fact. Regarding the
Commission’s finding that the Jordan River log dump is
unsuitable for the purposes of determining the
applicable stumpage rate, the Court found that the
concepts of licensee neutrality and “notional average
operator” are not expressly used in the CAM. Rather,
those concepts were repeatedly referred to by Western’s
witnesses. The Court held that the Jordan River log
dump only becomes unsuitable if the concepts of
“licensee neutrality” and “notional average operator”
are read into the CAM to defeat what would otherwise be
the result of a plain and unambiguous reading of section
4.1 of the CAM. The Court found that applying the
concept of licensee neutrality to find that Western
should pay stumpage as if it were trucking logs to a
further log dump in Sooke simply because other licensees
cannot use Jordan River produced an absurd result.
Therefore, the Court found the Commission’s decision
unreasonable and ordered that the decision was stayed.
Western appealed to the BC Court of Appeal. Writing for
the Court, Newbury JA held that the judge below did not
have the benefit of
Dunsmuir v. New Brunswick,
2008 SCC 9, which
now requires the application of a standard of
reasonableness to the Commission’s decision. In
particular, the Court held that the case turned on the
exercise of discretion under section 4.1 of the CAM
regarding whether a log dump is “unsuitable”. The Court
held that this question engaged the Commission’s
technical expertise in stumpage appraisal, even though
the question could be characterized as one of law (i.e.
the interpretation of the CAM, which is a form of
subordinate legislation). Applying the standard of
reasonableness, the Court found that the Commission’s
decision was reasonable. Specifically, the Court held
that there was evidence to support the principle of
licensee neutrality which the Commission had applied,
and it was not unreasonable for the Commission to have
accepted that evidence, especially in light of section
148.6 of the Forest Act which permits the
Commission to accept evidence even if that evidence may
be inadmissible in a court. After considering the
meaning of section 4.1 of the CAM, the Court held that
the Commission’s decision was consistent with the scheme
and tenor of the CAM, as explained by the unchallenged
evidence of Western’s witnesses, and lies within the
range of acceptable outcomes that were available to the
Commission. Accordingly, the Court allowed Western’s
appeal and ordered that the Commission’s decision was
restored.
Western Forest Products Limited v. Her Majesty the Queen in Right
of the Province of British Columbia (as represented by the Minister of Forests and Range) and
the Forest Appeals Commission
Decision Date:
August 16, 2007
Before:
Prowse, J.
Cite:
2007 BCCA
418
Western Forest
Products Limited (“Western”) applied for leave to appeal
to the British Columbia Court of Appeal an order of a
chambers judge, staying a 2005 decision of the Forest
Appeals Commission. The Commission had found that a log
dump in Jordan River was “not suitable” as an appraisal
log dump for the purpose of calculating stumpage to be
paid to the Province.
The Court considered the criteria set out
in Queens Plate Dev. Ltd. v. Vancouver Assessor, Area
09 (1987), 16 B.C.L.R. (2d) 104, including whether
the appeal raised questions of statutory interpretation
and whether there was some prospect of the appeal
succeeding on its merits, and whether there was any
clear benefit to be derived from the appeal.
With respect to the merits test, the
Court found that the chambers judge had incorrectly set
fort the relevant standard of review to be applied to
the Commission’s decision. The Court agreed with Western
that adopting the correct standard of review was
critical to a proper analysis by the chambers judge of
the Commission’s decision, and found that the standard
of review was a significant ground of appeal.
The Court further determined that there
was an arguable case that the chambers judge erred in
his interpretation of section 4.1 of the Coast Appraisal
Manual. The Court noted that the interpretation of that
provision had been part of a continuing dispute between
the Ministry and licensees, and that it raised questions
as to the relevance of Ministry policies and the
admissibility of certain types of evidence as aids to
interpretation. The Court found these to be questions of
general importance to the industry, and concluded that
there was a clear benefit to the parties and others in
having these issues addressed by the Court. As a result,
the Court granted leave to appeal.
Thomas Paul v. The Forest Appeals Commission and The Attorney General of British
Columbia and the Ministry of Forests, (Council of Forest Industries, Intervenor)
2001 B.C.C.A. 644
Decision Date: October 30, 2001
Court: B.C.C.A.; Lambert, J. Donald, J. Huddart, J.
Cite: Vancouver Registry No. CA026440/V03552
In this decision the Court provided supplementary reasons with respect to the
remedy to be granted following its June 30, 2001 judgement allowing Thomas
Paul’s appeal. The Court issued an order in the nature of certiorari quashing
the preliminary ruling of the Commission dated April 24, 1998, in which the
Commission gave its opinion that it had jurisdiction to decide the aboriginal
rights issue in the appeal taken to it by Mr. Paul under the Forest Practices
Code.
An order in the nature of prohibition was also issued, prohibiting the
Commission from taking jurisdiction to decide any question of aboriginal rights
in relation to the appeal taken to it by Mr. Paul under the Code.
A declaration was made that the Commission does not have
jurisdiction to decide any question of aboriginal rights or aboriginal title in
the course of exercising its functions under the Code.
Similarly, a declaration was made that the Legislature of
British Columbia does not have the legislative capacity to confer on the
Commission any jurisdiction to decide questions of aboriginal rights or
aboriginal title in the course of exercising its functions under the
Code.
Additionally, an order was made that Mr. Paul is entitled to
costs against the Commission, with liberty to apply for an order for costs
against the Attorney General of British Columbia and the Ministry of Forests.
Thomas Paul v. The Forest Appeals Commission and The Attorney General of British
Columbia and the Ministry of Forests, (Council of Forest Industries, Intervenor)
2001 B.C.C.A. 411
Decision Date: June 14, 2001
Court: B.C.C.A.; Lambert, J. Donald, J. Huddart, J.
Cite: Vancouver Registry No. CA026440/V03552
Corrigendum
Thomas Paul, an aboriginal Canadian, applied for an order prohibiting the Forest
Appeals Commission from hearing an appeal under the Forest Practices Code of
British Columbia Act, on the question of whether he removed four cedar trees
from Crown land in contravention of s. 96 of the Code. Mr. Paul claimed
an aboriginal right to harvest timber in traditional territory, but argued that
s. 91(24) of the Constitution Act precludes the province from enacting
legislation which empowers the Commission to directly adjudicate in respect of
the existence of aboriginal rights and, in the alternative, if the province can
so legislate, it has neither expressly nor impliedly done so. The Province
disputed Mr. Paul’s claim that it cannot empower a tribunal to adjudicate in
respect of the aboriginal right claimed by Mr. Paul, but endorsed his position
that the Commission had not been so empowered.
The British Columbia Supreme Court found that the Province had lawfully
granted the Commission jurisdiction over the parties and subject matter of the
appeal, as well as the remedy sought. Accordingly, the Supreme Court dismissed
the application for an order of prohibition. Mr. Paul and the Province
subsequently appealed to the Court of Appeal. The Court of Appeal considered two
issues. First, it considered whether the Province has the constitutional
capacity to give the Commission the jurisdiction to decide questions of
aboriginal rights and title in the context of deciding appeals about alleged
violations of the Code. Second, it considered whether, if the Province
had that constitutional power, it has exercised it by conferring that
jurisdiction on the Commission.
The majority of the Court found that the provincial legislature had no
constitutional authority to give the Commission the power to determine questions
of aboriginal title or aboriginal rights when dealing with alleged violations of
the Code. In light of this, Mr. Justice Lambert found it unnecessary to
address the question whether the Code granted such power. Mr. Justice
Donald concurred with Mr. Justice Lambert on the first issue. However, he also
allowed the appeal on the second issue, as he found that the Code did not
give the Commission the power to decide the aboriginal rights issues in this
case. In dissent, Madame Justice Huddart would have dismissed the appeal and
upheld the conclusion of the Supreme Court.
Accordingly, the appeal was allowed. The Court reserved judgement on the remedy,
pending further submissions on the remedy from the parties.
MacMillan Bloedel Limited, Canadian Forest Products Ltd., Western Forest
Products Limited, Mission Tree Farm and Richmond Plywood Corporation Limited v.
The Ministry of Forests and the Appeal Board appointed by Order in Council under
section 148 of the Forest Act, R.S.B.C. 1996, c.157
Decision Date: June 6, 2000
Court: B.C.C.A.; McEachern, J. Hollinrake, J. Finch, J.
Cite: Vancouver Registry No. CA025823
The companies appealed a decision of the Supreme Court of British Columbia
affirming a decision of the Forest Appeal Board. The Appeal Board had upheld the
decision of the Director of Revenue Branch to correct a mathematical error in
the calculation of stumpage rates by making a "special stumpage adjustment",
rather than sending the error to the Regional Manager for a full stumpage
reappraisal. The Board also found that the effective date of the correction
(when "notice" was given), was when the Revenue Branch "realized" there was an
error or when the Appellants specifically identified the error in a letter to
the Ministry.
The companies argued that the Chambers Judge erred in affirming the decision
of the Board: the Judge had found that the language of the Coast Appraisal
Manual ("CAM") dealing with mathematical errors was unambiguous, but that giving
effect to the plain meaning would lead to an absurd result. The companies also
argued that the Chambers Judge applied the wrong standard of review to the
Board’s decision on notice, giving too much deference to the Board. The
financial consequences of these errors to the companies was said to total
approximately $17 million.
The Court of Appeal allowed the appeal on both grounds. The Court found that
the section of the CAM addressing mathematical errors was clear and unambiguous
and, as such, it must be "enforced" however harsh or absurd or contrary to
common sense the result may be. It held that the finding of a mathematical error
made reappraisal mandatory. The Court also found that it was an error to
conclude that administrative costs and inconvenience amounted to an absurdity.
The Court also found that the effective date of the correction was
essentially a question of law which should have been reviewed by the Chambers
Judge on a standard of correctness. Applying this standard, the Court found that
the Board erred in holding that the initial letter by the companies to the
Ministry did not constitute notice in conformity with the legal requirements of
s. 2.3.4 of the CAM.
The appeal was allowed on both issues.
Disclaimer
The summaries provided on this site are an
interpretation of the decisions by Commission staff and may be subject to
different interpretation.
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