Supreme Court of British Columbia Decisions -
Summaries
Pope &
Talbot Ltd. v. Her Majesty
the Queen in the Right of the Province of British
Columbia and Forest Appeals Commission (Forest Practices
Board, Intervenor)
Decision date: December 14, 2009
Court:
BCSC, Fisher
Cite:
2009 BCSC 1715
Pope & Talbot Ltd.
(“P&T”) appealed a decision of the Forest Appeals
Commission (the “Commission”) to the British Columbia
Supreme Court. The decision under appeal was Pope &
Talbot Ltd. v. Government of British Columbia,
Decision No. 2005-FOR-004(b), issued September 4,
2007. In that decision, the Commission confirmed a
determination that P&T had contravened section 67(1) of
the Forest Practices Code of British Columbia Act
(the “Code”) by cutting trees contrary to the
silviculture prescription. The Commission also
confirmed the penalty of $1,000, apportioned 60 percent
to P&T and 40 percent to its harvesting contractor. The
silviculture prescription for the cut block identified
the harvesting to be done as clear-cut “with reserves”,
with the objective of leaving a specified volume of
“leave trees”. In the cut block a “guy-line clearing”
was also to be done, which was an area where no reserves
were required. After clearing the guy-line area, the
logging subcontractor continued to clear cut the entire
cut block without leaving any reserves.
P&T had appealed to
the Commission on the basis that P&T was duly diligent,
and that the contravention was entirely the
responsibility of the harvesting contractor and
sub-contractor. In considering whether P&T was duly
diligent, the Commission applied the test it set out in
Weyerhaeuser v. Government of British Columbia (Decision
No. 2004-FOR-005(b), January 17, 2006). First, the
Commission found that the contravention was reasonably
foreseeable, because the risk that harvesting may
deviate from operational plans was higher than usual due
to the extremely complicated silviculture prescription
for the cut block. Second, the Commission considered
whether P&T took all reasonable steps to prevent the
contravention from occurring. The Commission found that
the collective efforts of P&T, through its Environmental
Management System, the layout of the harvesting area and
P&T’s supervision of its contractor, were deficient.
P&T gave too much discretion to its staff, the
contractor and the sub-contractor in deciding how to
implement the leave tree requirements. The Commission
concluded that the defence of due diligence was not
established, and dismissed the appeal.
On appeal to the
Court, P&T argued that:
1. The Commission did not apply the
correct test of foreseeability in considering P&T’s due
diligence defence.
2. The Commission found facts not in
evidence, failed to consider relevant facts and took
irrelevant facts into account in finding that P&T failed
to take all reasonable steps to prevent the
contravention.
3. The Commission breached the rules of
procedural fairness by failing to give P&T an
opportunity to be heard on the question of whether
marking guy-line clearance boundaries was appropriate in
the circumstances.
The Court first
considered the standard of review that applied to the
Commission’s decision, based on the test set out in
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.
Regarding P&T’s first ground for appeal, the Court found
that the interpretation of the due diligence test is a
question of general law that is important to the legal
system and is outside of the Commission’s specialized
area of expertise, and therefore, correctness is the
appropriate standard of review. On P&T’s second ground
for appeal, the Court also held that correctness is the
appropriate standard of review on the question of
whether the Commission considered the evidence in such a
manner as to constitute an error of law. However, the
Court noted that there is no right of appeal to the
Court under section 141 of the Code on questions
of fixed fact and law. On the third ground for appeal,
the Court held that consideration of breaches of
procedural fairness do not engage a standard of review
analysis, because a breach of procedural fairness
results in a lack of due process that may result in the
tribunal’s decision being set aside or the matter being
remitted back to the tribunal.
Turning to P&T’s
first ground for appeal, the Court held that the
Commission was correct to apply a test of foreseeability
in considering P&T’s defence of due diligence, but the
due diligence test set out in Weyerhaeuser does
not accurately reflect the common law or the
legislation, and the Commission’s reiteration of that
test in this case caused some confusion.
Specifically, the
Court held that there were two substantive errors in
Weyerhaeuser. The first error was to incorrectly
define the first branch of the due diligence test as
reasonable foreseeability rather than mistake of fact.
Requiring reasonable foreseeability of the event as a
condition precedent to a consideration of reasonable
care was an incorrect interpretation of the due
diligence test. The only condition precedent to a
consideration of whether a person took all reasonable
care is that the person was not under a mistake of fact
which rendered the person’s conduct innocent. While
foreseeability may be a relevant factor in assessing
whether the person took all reasonable care,
foreseeability is not a condition precedent to assessing
whether the person took reasonable care.
The second error in
Weyerhaeuser was the conclusion that the defence
of due diligence was established when the company could
not reasonably foresee the “circumstances that gave rise
to the contravention”, rather than the contravention
itself. The proper inquiry under the second branch of
the due diligence test, as codified in the legislation,
is whether the person took reasonable care to avoid the
“particular event”. The case law makes it clear that
the “particular event” is the contravention itself, and
not the circumstances that gave rise to it.
Applying those
findings to the present case, the Court held that
although the Commission addressed foreseeability as a
first step under the defence of due diligence, it
correctly focused on the foreseeability of the
contravention. The Commission’s finding that the
contravention was reasonably foreseeable is a question
of mixed fact and law, which cannot be the subject of an
appeal to the Court. Consequently, the Court rejected
P&T’s argument that the Commission did not apply the
correct test of foreseeability in considering the due
diligence defence.
Regarding P&T’s
second ground for appeal, the Court found that the
Commission did not misdirect itself on the law on the
issue of reasonable care as applied to the facts. The
Commission made the correct inquiry; namely, whether P&T
took all reasonable steps to avoid the contravention.
Further, the Commission’s finding that P&T could have
done more to prevent the contravention was supported by
evidence. Consequently, the Commission did not err in
law in finding on the evidence before it that P&T failed
to take all reasonable steps to prevent the
contravention.
Finally, the Court
held that, although the Commission concluded that the
unauthorized harvesting could have been prevented by
making more effort to mark the limits of guy-line
clearances, and the Commission did not question parties
about this issue, this did not constitute a breach of
procedural fairness given the overall basis for the
Commission’s decision, and given that P&T had a full
opportunity to respond to all of the evidence and
submissions.
Accordingly, the
Court dismissed the appeal.
Canadian Forest Products Ltd. v. Her Majesty
the Queen in the Right of the Province of British
Columbia and Forest Appeals Commission
Decision date: July 30, 2009
Court:
BCSC, Groves
Cite:
2009 BCSC 1040
Canadian Forest Products Ltd. (“Canfor”) appealed a
decision of the Forest Appeals Commission (the
“Commission”) to the British Columbia Supreme Court. In
Canadian Forest Products Ltd. v. Government of
British Columbia,
Decision No.
2007-FA-023(a), dated November 13, 2007, the
Commission 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 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.
On
appeal to 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.
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.
Ronald Edward Hegel and 449970 B.C. Ltd. v. Her Majesty
the Queen in the Right of the Province of British
Columbia as represented by the Ministry of Forests
Decision date:
June 29, 2009
Court:
BCSC, Meiklem
Cite:
2009 BCSC 863
Ronald
Edward Hegel and 449970 B.C. Ltd (the “Appellants”)
appealed a decision of the Forest Appeals Commission
(the “Commission”) issued on October 12, 2007 (Ronald
Edward Hegel and 449970 B.C. Ltd. v. Government of
British Columbia,
Decision No.
2005-FOR-009(a)).
The
events that led to the appeal may be summarized as
follows. In or about 2002, 449970 B.C. Ltd. commenced
logging on property that it owned near Avola, B.C. Mr.
Hegel was the president of 449970 B.C. Ltd. In 2005, the
District Manager, Ministry of Forests and Range,
determined that the Appellants had contravened sections
96(1) and 97(2) of the Forest Practices Code of
British Columbia Act (the “Code”) by failing
to properly ascertain the boundaries of their property,
and harvesting Crown timber without authority. The
District Manager levied a penalty of $132,897.40 against
the Appellants.
The
Appellants appealed the District Manager’s decision to
the Commission on the grounds that they had exercised
due diligence in attempting to locate the property
boundary, that they were under a mistake of fact
regarding the boundary, that their actions resulted from
an officially induced error, and that the penalty was
excessive.
The
evidence before the Commission focused on Mr. Hegel’s
efforts to ascertain the property boundaries, and
whether an area referred to as “Area A”, which is
located to the north and west of the property, and which
was the alleged site of the unauthorized harvesting, is
located on the Appellants’ property or on Crown land.
The parties provided a substantial amount of evidence of
historic and recent surveys of the area. The property’s
south and east boundaries were not in dispute.
The
Commission considered whether the Appellants contravened
the Code by failing to properly ascertain the
boundaries of the property. The Commission accepted the
Government’s expert evidence that Area A is located
north of the Appellants’ property and on Crown land. The
Commission also considered the evidence of the
Appellants’ surveyor, which also indicated that Area A
was on Crown land. The Commission held that the
Appellants’ attempt to ascertain the boundaries was
inadequate and resulted in the unauthorized harvest of
Crown timber.
The
Commission then considered whether the Appellants had
established any defences. The Commission found that,
although Mr. Hegel made efforts to ascertain the
boundaries before harvesting began, his actions were
inadequate to establish the defence of due diligence.
Specifically, he had failed to locate corner pins and to
measure all of the boundaries against previous survey
notes. The Commission also found that the Appellants did
not establish the defences of mistake of fact or
officially induced error.
In
conclusion, the Commission confirmed the contravention
and, at the Government’s request, slightly reduced the
penalty based on new evidence. The appeal was dismissed.
The
Appellants then appealed to the British Columbia Supreme
Court on the grounds that the Commission erred in law:
1.
in determining the location
of the property’s north boundary, and in concluding that
Area A is on Crown Land;
2.
by concluding that Mr.
Hegel started his on-site investigation of the
boundaries of the property from a wooden fence post;
3.
by concluding that the
Appellants did not exercise due diligence in their
efforts to determine the location of the northern
boundary of the property;
4.
by concluding that the
defence of mistake of fact did not apply to the
Appellants’ efforts to determine the location of the
northern boundary of the property.
The
Court found that the Commission made no error of law in
reaching its conclusion about the location of the
property’s northern boundary and in concluding that Area
A is on Crown land. The Court rejected this ground for
appeal.
The
Court also rejected the second ground for appeal.
Although the Court found that the Commission misstated
Mr. Hegel’s evidence by stating that he started his
investigation at a wooden fence post rather than at an
old staking post, the Court found that, absent this
minor mistake, the Commission’s decision regarding the
defences of due diligence and mistake of fact would
have, and should have, been no different.
Regarding the third ground for appeal, the Court found
that the Appellants did not allege that the Commission
had misstated the legal test to be applied in respect of
due diligence. The Court also found that the Commission
did not misapprehend the evidence regarding the defence
of due diligence.
On the
fourth ground for appeal, the Court held that the
Commission was entitled to consider the reasonableness
of Mr. Hegel’s overall efforts to ascertain the property
boundaries. The Court found no error of law in the
Commission’s approach to the defence of mistake of fact.
In
conclusion, the Court dismissed the appeal.
British Columbia (Minister of Forests and Range) v.
Forest Appeals Commission
Decision date:
May
16, 2007
Court:
B.C.S.C.
Johnston, J.
Cite:
2007 BCSC
696
British Columbia
appealed a decision by the Forest Appeals Commission
(the “Commission”) to the Supreme Court of British
Columbia. The decision at stake was the Commission’s
determination that a log dump at Jordan River was
unsuitable as an appraisal log dump for the purpose of
calculating stumpage to be paid by Western Forest
Products Ltd. (“Western”) to the Province. The Coast
Appraisal Manual (the “CAM”) contains the policies and
procedures regarding stumpage in the Coast Region that
have been approved by the Minister under the Forest
Act (the “Act”). The policies and procedures
set out in the CAM must be applied when calculating
stumpage. The version of the CAM that was in effect in
this case required that cost estimates for harvesting
and transportation be determined in a way that assumes
the cheapest method of harvesting and transportation
available. However, it also stipulated that the cheapest
method need not be determinative if it is determined to
be “unsuitable for the cutting authority area.” The
Province argued that the Commission wrongly interpreted
the phrase “unsuitable for the cutting authority area”
and was led into error when it admitted into evidence
extrinsic documents purporting to state or explain the
policy underlying the CAM.
The Court dealt
with three issues: the standard of review to be applied
on the appeal, the admissibility of the evidence relied
upon by the Commission, and whether the Commission’s
interpretation of the CAM should be overturned.
Turning to the
first issue, the Court applied the factors set out in
Pushpanathan v. Canada (Minister of Citizenship and
Immigration). Balancing the expertise of the
Commission with the availability of a statutory appeal
to the court, the purpose of the CAM and the Act,
and the Court’s determination that the issue faced by
the Commission was a question of law, the Court found
that the appropriate standard of review lay between
reasonableness simpliciter and correctness, but
closer to reasonableness simpliciter.
In addressing the
second issue, the Court determined that, while the
evidence of the witnesses appeared to be more argument
and conclusion than statements of fact, policy
statements and explanatory documents issued by the
Ministry were properly admissible as evidence aiding the
interpretation of the CAM. In that regard, the Court
held that, while the CAM is akin to legislation, it is
neither a statute of the Legislature, nor a regulation;
rather it is a “statement by the Minister.” The Court
also noted that the CAM is drafted by Ministry employees
and is then approved by the Minister. Consequently, the
Court found that policy statements and explanatory
documents issued by the Ministry are part of the context
in which the CAM operates and out of which it emanated.
Finally, the Court
turned to the issue of the reasonableness of the
Commission’s finding that the Jordan River log dump,
which is owned, operated and utilized by Western only,
was unsuitable. The Court found that the concepts of
licensee neutrality and “notional average operator” or
“average efficient operator” were important to the
Commission’s interpretation of the phrase “unsuitable
for the cutting authority area”, yet those two concepts
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 plan and unambiguous reading of the CAM. The
Court found that such a reading of the CAM leads to the
conclusion that the suitable log dump for Western is the
Jordan River log dump. Applying the concept of licensee
neutrality to find that Western should pay stumpage as
if it were trucking logs to a further log dump simply
because other licensees cannot use Jordan River produced
an absurd result. Therefore, the Court found the
Commission’s decision unreasonable and stayed it under
section 150 of the Act.
Province of British Columbia (Minister of Forests) v.
Teal Jones Forest Ltd., Teal Cedar Products Ltd., and
the Forest Appeals Commission
Decision date: October 13, 2006
Court:
BCSC, Registrar
Cite:
Victoria Registry No. 052945
The Province of British Columbia, as represented by the Minister of
Forests (the “Province”), appealed a decision of the
Forest Appeals Commission issued on May 20, 2005 (Teal
Jones Forest Ltd. and Teal Cedar Products Ltd. v.
Government of British Columbia,
Decision Nos. 2004-FA-072(a) to 074(a), 080(a) to
083(a), 089(a), 2005-FA-031(a) & 041(a)).
The Commission’s decision involved ten
separate stumpage rate determinations that were issued
to Teal Jones Forest Ltd. and Teal Cedar Products Ltd.
(collectively, “Teal”) by the Regional Appraisal
Co-ordinator, Coast Forest Region, Ministry of Forests.
The determinations applied to timber harvested under ten
cutting permits held by Teal near Port Renfrew on
Vancouver Island.
As part of the stumpage appraisal process, Teal
submitted data to the Regional Appraisal Co-ordinator
that designated the Shoal Island log dump and sorting
facility as the “appraisal log dump” for the purpose of
determining the stumpage rates applicable to the cutting
permits. An
appraisal log dump is used to determine haul distances,
towing and barging points of origin, and road use
charges in appraising stumpage rates under Coast
Appraisal Manual (the “CAM”).
The choice of an appraisal log dump can
significantly affect the amount of stumpage payable by
the licensee.
In determining the applicable stumpage rates, the
Regional Appraisal Coordinator rejected Shoal Harbour as
the appraisal log dump, and substituted the Jordan River
log dump.
This resulted in significantly higher stumpage rates for
the ten cutting permits.
On appeal to the Commission, Teal
requested that the determinations be rescinded and the
Regional Appraisal Co-ordinator be directed to
reappraise the stumpage rates using Shoal Island as the
appraisal log dump.
The Commission first considered
whether the Regional Appraisal Co-ordinator exercised
discretion under the CAM when selecting the appraisal
log dump. The Commission found that the process of
selecting the appraisal log dump is an exercise of
discretion that must be exercised in a reasonable
manner, and must be consistent with the objectives and
intent of the CAM. The Commission held that it was
not a reasonable exercise of discretion to select Jordan
River as the appraisal log dump for the ten cutting
permits, and the stumpage rates should have been
assessed using Shoal Island as the appraisal log dump.
The evidence showed that, although the Jordan
River facility was closer to the areas covered by Teal’s
cutting permits, that facility was unavailable to Teal
because it was being used to its full capacity by
another forest company.
The Shoal Island facility was the closest
functioning log dump that was available for use by Teal.
Consequently, the Commission referred
the matter back to the Regional Appraisal Co-ordinator
with directions to recalculate the stumpage rates based
on Shoal Island as the appraisal log dump.
Accordingly, the appeals were allowed.
The Province appealed the Commission’s decision to the British Columbia
Supreme Court, on the grounds that the Commission erred
in interpreting the CAM and in finding that the Regional
Appraisal Coordinator’s selection of Jordan River was an
unreasonable exercise of discretion.
Before the appeal was heard by the Court, the parties negotiated an
agreement to settle the matter.
By consent of the parties, the Court ordered that the appeal was
dismissed, with each party bearing their own costs.
Lloyd
Bentley v. Forest Appeals Commission, and Forest Practices Board, and Government
of British Columbia Decision Date: May 28, 2003
Court: B.C.S.C. Edward, J
Cite: 2003 BCSC 832
Lloyd Bentley appealed a decision of the Forest Appeals Commission (the
“Commission”), which predominantly upheld a decision of a Review Panel under the
Forest Practices Code of British Columbia Act.
The Review Panel had upheld a decision of the Forest District Manager of
Fort St. John that Mr. Bentley had breached sections 96(1) and 97(1) of the
Code.
Mr. Bentley admitted that he had logged timber from Crown land in violation
of the Code, and had failed to ascertain the boundaries of his private
land before beginning logging.
However, he was appealing on the basis that the Commission had failed to
address his argument for a reduction in penalties because of the alleged
contributory negligence of the Ministry of Forests in failing to correct his
mistaken belief that he was logging his land rather than Crown land.
Also, Mr. Bentley argued that the Commission had erred in failing to deal
with his request for an order for costs.
The Court found that the Commission made several findings of fact pertinent
to the contributory negligence claim, most importantly that officials at the
Ministry of Forests were uncertain about the ownership of the area Mr. Bentley
was proposing to log, and gave no express assurances that the land was not Crown
land.
The Court therefore found that the Commission did not err with respect to the
argument of contributory negligence.
Although the Commission said it would not address the issue, it in fact
did comment on it with respect to the section 97 penalty, and decided that
ultimately it was Mr. Bentley’s responsibility, and not the Ministry’s, to
determine the boundaries and ownership of the property that Mr. Bentley logged.
The Court was confident that, had the Commission specifically addressed
the contributory negligence argument, it would have rejected it.
However, the Court held that the Commission had erred by failing to deal with
the issue of costs. Despite this, the Court decided not to direct the Commission
to rule on costs, unless one of the parties applies to the Commission to do so.
Accordingly, the Court dismissed Mr. Bentley's appeal.
The Court also ruled that the parties could apply to the Commission for a ruling
on costs for the prior proceedings.
Rodney Gilbert and Linda Gilbert v. Forest Appeals Commission and Forest
Practices Board
Decision date: June 25, 2002
Court: B.C.S.C. Metzger, J.
Cite: Kamloops Registry No. 31224
The Gilberts and the Minister of Forests appealed a decision of the Forest
Appeals Commission confirming that the Gilberts had contravened section 96 the
Forest Practices Code, and directing the Ministry of Forests’ District
Manager to reduce the penalty levied against the Gilberts by an amount equal to
the expenses they had incurred from complying with a verbal stop-work order
issued by a Ministry of Forests official. The Minister of Forests appealed the
Commission’s findings with respect to the penalty. The Gilberts appealed the
Commission’s findings that they were vicariously liable for, and had benefited
from, the actions of David Colebank, whom the Gilberts had hired to clear their
land. Mr. Colebank and the Gilberts had agreed to share the proceeds from the
sale of the timber. Without the Gilberts’ knowledge, Mr. Colebank moved their
private property boundary lines onto Crown land and harvested timber from both
Crown land and the Gilberts’ land. The Commission found that the Gilberts shared
in the proceeds from the sale of the Crown timber and their timber.
The Gilberts argued that the Commission erred in law and in fact when it
determined that Mr. Colebank cut the Crown timber on their behalf, and that they
were in a partnership with Mr. Colebank. The Gilberts argued that the Commission
also erred by upholding the District Manager’s findings with respect to the
amount of timber that was illegally harvested under the Gilberts’ timber mark.
With respect to the appropriate standard of review, the Court adopted the
findings in International Forest Products Ltd. v. British Columbia
(Forest Appeals Commission), [1998] B.C.J. No. 1314 (B.C.S.C.), and applied
a standard of reasonableness simpliciter.
The Court considered whether the Commission erred in its interpretation and
application of section 96 of the Code. The Court found that sections
96(3) and 117(2) of the Code impose vicarious liability. Under section
117(2), liability can be imposed by virtue of the relationship between parties,
such as a relationship of agency, employment, or contract. Under section 96(3),
liability can also be imposed where timber was cut "at the direction or on the
behalf of" another person. The Court noted that in both cases the liability is
absolute. The Court found that there was no doubt that Mr. Colebank harvested
the Crown timber and that the Gilberts received payment for it. The Court found
that the evidence before the Commission was consistent with the conclusion that
the activity of Mr. Colebank was undertaken "on behalf of" the Gilberts, even if
Mr. Colebank had acted illegally and without the knowledge of the Gilberts. The
Court also found that there was no reason to disagree with the Commission’s
rejection of the Gilberts’ theory that Mr. Colebank had sold a substantial
amount of the Crown timber under another timber mark.
The Court found that the Gilberts had suffered damages as a result of
following a verbal stop-work order issued by the Ministry. The Court noted that
no written order was given as required by the Code, and that the Gilberts
did not know that they could have ignored the order. Therefore, the Court agreed
with the Commission’s decision to refer the matter back to the District Manager
to determine the setoff that the Gilberts should receive as against their
penalty.
The Court dismissed the appeals and ordered that the Commission’s decision to
remit the matter of the penalty back to the District Manager be implemented to
the extent that it directs the penalty to be reduced by an amount equal to the
Gilberts’ expenses incurred as a result of the Ministry’s verbal order.
Alan
R. Luoma v. Province of British Columbia (Ministry of Forest) and Forest Appeals
Commission
Decision date: March 15, 2000
Court: B.C.S.C. Smith, J.
Cite: Campbell River Registry No. S3482
Mr. Luoma sought to appeal from decisions of the Forest Appeals Commission
and a Forest Appeal Board. Counsel for the Attorney General sought an order
dismissing Mr. Luoma’s appeal as out of time. The Commission and Board decisions
were sent to Mr. Luoma’s solicitor by fax and by regular mail, but not directly
to Mr. Luoma. If Mr. Luoma was validly served, he failed to file his appeals to
the Court within the time allowed. If he was not validly served, then he was
within time.
The Court found that both the Board and the Commission had acted in such a
manner that Mr. Luoma had been validly served under both the Forest Act
and the Forest Practices Code. Furthermore, the Court concluded that,
because Mr. Luoma had given his solicitor’s address for delivery, he could not
argue that the Board and Commission failed to comply with the statutes because
they did not deliver the document to him personally or by registered mail to his
address. The appeals were dismissed as out of time.
Omineca Enterprises Ltd. v. The Minister of Forests and the Appeal Board
Decision date: February 24, 2000
Court: B.C.S.C. Shaw J.
Cite: Vancouver Registry No. A981665 & A982927
Keywords: Forest Act – s. 61; Omineca Enterprises v.
Ministry of Forests; procedural fairness; audi alterem partem.
Omineca Enterprises Ltd. ("Omineca") applied for an order to set aside a
decision of the Forest Appeal Board which found that the Ministry of Forests
cancelled two Timber Sale Harvesting Licences of Omineca in accordance with the
law. Omineca contested the legal merits of the TSHL cancellations and also
claimed that the Board had breached the rules of procedural fairness.
Omineca’s argued that there had never been a formal order of cancellation of
the TSHLs and that section 61 (now section 77) of the Forest Act
required that such an order be made. The court found that the section 61
requirements for cancellation had been followed by the MOF. The Ministry had
published a notice of the cancellation in the B.C. Gazette, and the Minister had
then confirmed the cancellation in a letter. In addition, notice of cancellation
had been implied into section 61 in Omineca Enterprises v. Minister of
Forests, [1990] B.C.J. No. 2594. The court stated that there was no
justification for reading into section 61 the further requirement of making a
formal cancellation order.
Omineca also contended that the cancellation was invalid because one of the
Ministry’s grounds for cancellation was a claim for rent owing on the TSHL up to
1986. Omineca argued that, under section 62 (now section 79) of the Forest
Act, its obligation to pay rent ceased with the suspension of its cutting
permits in 1983. However, the court held that section 62 does not apply to
cutting permits and, therefore, Omineca owed rentals up to the time when the
TSHL was cancelled, in 1986.
Omineca raised two procedural issues. It first contended that the Board
received materials that were not sent to the parties. The court found there was
no merit to this ground of appeal as Omineca could not point to any possibility
of prejudice arising from what had occurred. Omineca also complained that from
time to time, counsel to the Board met with the Board when it retired to
consider procedural and evidentiary issues. Omineca contended that this
constituted a breach of the audi alterem partem rule. The court found
that the circumstances did not warrant an inference of a breach of the audi
alterem partem rule. The appeal was dismissed.
Application for leave to appeal was dismissed by British Columbia Court of
Appeal.
Thomas
Paul v. Forest Appeals Commission, Attorney General of British Columbia, and
Ministry of Forests
Decision date: September 23, 1999
Court: B.C.S.C. Pitfield, J.
Cite: Vancouver Registry No. 98-1858
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 Court rejected Mr. Paul’s first argument on the grounds that it
incorrectly equated the capacity to adjudicate with the capacity to legislate.
It concluded that the provincial legislature may lawfully constitute a tribunal
for the purpose of dealing with matters within provincial legislative authority.
Forest lands and the management and development thereof are matters within
provincial jurisdiction. The Court found that the provincial legislature may
empower a tribunal to balance the competing rights of the Crown in relation to
its constitutional authority and property, against those of an individual who
asserts an aboriginal right. In doing so, the province is not legislating in
respect of aboriginal rights, but providing a mechanism by which a trespass
against Crown property will be adjudged.
On Mr. Paul’s second argument, the Court found that the provincial
legislature has not expressly empowered the Commission to adjudicate in respect
of aboriginal rights in the context of s. 96 of the Code, but the power
can and should be inferred from the legislation. The Court concluded that the
Commission has jurisdiction over the parties and the subject matter; namely, the
construction and application of s. 96 of the Code. It found that the
Commission also has jurisdiction over the remedy as it can invoke s. 52(1) of
the Constitution Act and declare s. 96 to be of no force and effect.
Finally, the Court found that there are practical reasons that support this
conclusion, such as avoidance of a bifurcated process.
The application for an order of prohibition was dismissed.
MacMillan Bloedel Limited, Canadian Forest Products Ltd. Western Forest Products
Limited, Mission Tree Farm and Richmond Plywood Corporation Limited v. Ministry
of Forests and the Appeal Board
Decision date: March 29, 1999
Court: B.C.S.C. Vickers, J.
Cite: Vancouver Registry No. A982003
The companies appealed a decision of the Forest Appeal Board, which affirmed
the method of correcting a mathematical error in the calculation of stumpage
rates used by the Ministry of Forests’ Revenue Branch. The Director of the
Revenue Branch had corrected the error and recalculated the stumpage rates. The
companies appealed to the Board on the grounds that the Cost Appraisal Manual
required a full stumpage reappraisal by the Regional Manager, not simply a
correction of the error. On appeal to the Court, the companies argued that the
Board erred in (1) its interpretation of section 2.3.4(e)(iii) of the Coast
Appraisal Manual; and (2) in its interpretation of the notice requirement in s.
2.3.4 of the Manual.
The Court found that the first issue involved a question of law and that a
"standard approaching correctness" was to be applied to the Board’s decision.
The Court found that, while the language of the Manual clearly stated that a
full reappraisal was required, a strict interpretation of this requirement would
lead to an absurd result. Thus, the Court found that the Board did not err in
its interpretation of s. 2.3.4(e)(iii).
On the second issue, the Court found that the Board erred in law. However, as
the question of sufficiency of notice involves issues of both fact and law, the
standard of review was one of reasonableness. The Court found that there was
evidence that would allow the Board to reach the decision it did and that the
decision was not unreasonable. Therefore, the Board did not err. The appeal was
dismissed.
Canadian Forest Products v. Her Majesty
The Queen In Right of the Province of British Columbia, The Forest Practices
Board and the Forest Appeals Commission
Decision date: December 11, 1998
Court: B.C.S.C. Burnyeat, J.
Cite: Vancouver Registry No. A981314
The Court ordered that the appeal by Canadian Forest Products Ltd. be disposed
of summarily. It varied the decision of the Forest Appeals Commission in
Canadian Forest Products Ltd. v. The Government of British Columbia
(Appeal No. 1997-FOR-17, April 23, 1998) by reducing the volume of timber used in
the calculation of the penalty, reducing the Bonus Bid, as well as recalculating
the harvest penalty and the total penalty.
International Forest Products v. Forest Appeals Commission (Forest Practices
Board Third Party); (Friends of Clayoquot Sound, Intervenor)(B.C.S.C.)
Decision date: June 3, 1998
Court: B.C.S.C. Bauman, J.
Cite: [1998] B.C.J. No. 1314
Keywords: Forest Practices Code of British Columbia Act-s. 63(2); Forest
Road Regulation-s. 17(1)(c); standard of review; Pezim; tribunal's standing
before the Court. Interfor appealed a March 19, 1997 decision of the Forest
Appeals Commission that upheld a finding that Interfor had breached section
63(2) of the Forest Practices Code of British Columbia Act and section 17(1)(c)
of the Forest Road Regulation.
Interfor argued that the Commission did not find a breach of section 17(1)(c) of
the Regulation, which obliged Interfor to "inspect the road and repair the road
to ensure that...the transfer of sediment from the road prism and its effects on
other forest resources are minimized." Interfor argued that the Commission
ignored the words in the section and imposed a much higher duty on the company
to ensure that the transport of sediment was minimized in all events. In
addition, Interfor argued that the Commission ignored the words "and its effects
on other forest resources" in the same section.
On the issue of the appropriate standard of review the Court concluded that, on
matters going to the core of the Board's mandate and expertise, the
reasonableness simpliciter, or, "clearly wrong" standard is appropriate. After
reviewing the Commission's decision, the Court accepted that it was implicit
therein that the Commission found a breach of Interfor's obligation to inspect
and repair and the Commission had not erred in law. In addition, the Court found
that the Commission expressly directed its mind to the impact on forest
resources in concluding that section 17 had been contravened. The Court found
that this finding was at the core of the Commission's expertise and was entitled
to significant deference. In addition, it was a pure question of fact from
which, arguably, no appeal lied. Therefore, Interfor's submissions on that point
could not be sustained.
On the issue of standing, the Court noted that a tribunal being appealed from
might properly make submissions on the appropriate standard of review.
The appeal was dismissed with costs.
International Forest Products v. British Columbia Forest Appeals Commission
(Forest Practices Board & Government of B.C., Third Parties; Friends of
Clayoquot Sound, Intervenor)
Decision date: November 28, 1997
Court: B.C.S.C. Edwards, J.
Cite: Vancouver Registry No. A970934
Keywords: Forest Practices Code
- ss.141, 63(1); Forest Road
Regulation - s.17(1)(c); Queens Plate Development Ltd. et. al. v. Assessor of
Area 09-Vancouver [1987], deference.
International Forest Products Ltd. sought leave to appeal a decision of the
Forest Appeals Commission pursuant to s.141 of the Forest Practices Code of
British Columbia. Interfor raised three issues: whether the Commission erred in
applying the maintenance rather than the construction provisions of the Code and
Forest Road Regulation, whether the Commission erred in its interpretation of
s.17(1)(c) of the Regulation; and whether the Commission erred in failing to
apply the Kienapple principle when finding the applicant had contravened both
the Code and the Regulation.
The Court applied the test for leave to appeal and held that the most important
criteria for granting leave to appeal a decision to the Supreme Court was
whether the appeal raises an important point of law and whether there is some
prospect of the appeal succeeding on the merits. The Court held that the answer
to the first question involved a question of fact (i.e. whether the road was
being “used”). No appeal lies from that determination. The Court also found that
the third issue was not of sufficient importance in the context of this case to
warrant granting leave to appeal. However, the Court held that the Commission’s
interpretation of section s.17(1)(c) was a question of law and has some
consequence to those administering and governed by the section because the
different interpretations reflect different standards of care. It could not
conclude that there was not some prospect of the appeal succeeding on its merits
on this point. Therefore, the Court granted leave to appeal on the question of
whether the Commission misinterpreted this section.
International Forest Products v. British
Columbia Forest Appeals Commission (Forest Practices Board & Government of B.C.,
Third Parties; Friends of Clayoquot Sound, Intervenor)
Decision date: June 16, 1997
Court: B.C.S.C. Hood, J.
Cite: (1997), 23 C.E.L.R. (N.S.) 170 (B.C.S.C.)
Keywords: Forest Practices Code - ss. 141, 126(1); statutory
interpretation; plain reading and meaning of words; avoidance of repugnancy;
MacKeigan v. Hickman.
International Forest Products Ltd. appealed the March 1997 decision of the
Forest Appeals Commission affirming that the company contravened the Forest Road
Regulation. On a motion for partial directions, pursuant to Rule 49 of the
Supreme Court Rules, Interfor sought a ruling on whether it needed to obtain
“leave to appeal” from the Supreme Court in order to appeal a decision of the
Commission. At issue was the interpretation to be given to section 141 of the
Code.
The Court noted that the parts of a statute are presumed to fit together
logically to form a rational, internally consistent framework. Subsection 141(1)
of the Code was therefore interpreted in conjunction with subsections (2) and
(3). The Court concluded that the best way to give effect to the subsections’
individual purposes, while avoiding conflict between them, was to read the word
“application” as “application for leave to appeal” throughout section 141.
Therefore appeal to the Supreme Court from a decision of the Forest Appeals
Commission is not an appeal as of right. Costs of application awarded.
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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