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Supreme Court of British Columbia Decisions - Summaries

 
Minister of Forests, Lands and Natural Resource Operations v. Canadian Forest Products Ltd. and Forest Appeals Commission

Decision date: May 10, 2018

Court: B.C.S.C., Justice Silverman

Citation: 2018 BCSC 771

The Minister of Forests, Lands and Natural Resource Operations (the “Minister”) filed an appeal with the BC Supreme Court, against a decision issued by the Forest Appeal Commission (the “Commission”). The Commission’s decision involved the denial of an application for summary dismissal of eight appeals filed by Canadian Forest Products Ltd. (“Canfor”) against stumpage re-determinations issued by the Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”).

In 2017, Canfor appealed eight stumpage rate re-determinations issued by a Ministry employee. The stumpage rates applied to timber harvested by Canfor under cutting permits (“CPs”) issued under a forest licence. Stumpage is a fee paid to the government for harvesting Crown timber. In determining stumpage rates for timber harvested in the Interior Region, the Ministry must apply the policies and procedures set out in the Interior Appraisal Manual (“IAM”). The original stumpage rates, which were determined in 2012 and 2013, were lower than the re-determined rates.

The re-determinations were issued after a delegate of the Minister directed the original stumpage rates to be re-determined under section 105.2 of the Forest Act. The Minister received submissions from Canfor before issuing the direction, and the Minister issued reasons for his direction. The Minister directed the Ministry employee to re-determine the stumpage rates by taking into account water transportation (lake tow) of the harvested logs for part of the distance from the CP areas (i.e., from a log dump on Williston Lake) to the point of appraisal, rather than based on truck haul for the entire distance. Lake tow is a lower cost transportation method than truck haul, and therefore, lake tow produced a higher stumpage rate.

The direction to conduct the re-determinations was preceded by a 2015 decision of the Commission regarding several other stumpage appeals by Canfor involving the issue of water transportation from the same log dump on Williston Lake (Canadian Forest Products Ltd. v. Government of British Columbia, Decision Nos. 2014-FA-001(a) to 009(a)). The Commission’s decision was confirmed on appeal to the BC Supreme Court in November 2016 (Canadian Forest Products Ltd. v. British Columbia, 2016 BCSC 2202).

The Government applied to the Commission for an order summarily dismissing the stumpage appeals pursuant to section 31(1) of the Administrative Tribunals Act. The Government argued that the appeals: (1) were outside of the Commission’s jurisdiction because they were, in substance, challenging the Minister’s direction, and the Forest Act does not provide for appeals of Minister’s directions; (2) raised issues that were addressed in the Commission’s 2015 decision, and therefore, the appeals were an abuse of process as a collateral attack, and/or their substance had been appropriately dealt with in another proceeding (i.e., was “res judicata” – had been conclusively and finally dealt with).

The Commission found that the appeals were within its jurisdiction. Section 105.2 of the Forest Act required the Ministry employee to take into account the information that formed that basis of the Minister’s direction, but the employee was not bound by the Minister’s opinion or the reasons for the Minister’s direction. The appeals were against the re-determinations, and not the Minister’s direction. The Commission also found that the appeals were not an abuse of process or an attempt to re-argue issues that were appropriately dealt with in another proceeding. The process that led to the Minister’s direction did not take the place of the appeal process, the Commission’s 2015 decision did not consider the argument that formed the basis of the 2017 appeals, and it would be unreasonable to expect Canfor to have raised that issue in the previous appeals.
For all of those reasons, the Commission denied the Government’s application to summarily dismiss the appeals.

The Province, as represented by the Minister, appealed the Commission’s decision to the BC Supreme Court. The Province essentially made the same arguments to the Court that it made before the Commission.
The Court found that the Province’s arguments regarding res judicata, collateral attack, and abuse of process raised questions of mixed fact and law. However, section 140.7 of the Forest and Range Practices Act provides that the Commission’s decisions may be appealed to the Court on “a question of law or jurisdiction” only. Consequently, the Commission’s findings on those issues could not be appealed to the Court. The Court also found that, even if those issues could be appealed to the Court, the Commission’s decision would be entitled to deference, such that the “reasonableness” standard of review would apply, and the Commission’s findings were reasonable.

Regarding the Province’s argument that the stumpage re-determinations were not within the Commission’s jurisdiction, the Court found that the appropriate standard of review was the deferential standard of reasonableness, and the Commission’s finding that it had jurisdiction to hear the appeals was reasonable. The Court found that a re-determination ordered by the Minister under section 105.2 of the Forest Act is a determination under section 105(1) of that Act, and therefore, is appealable to the Commission under section 146(2) of the Forest Act.

Accordingly, the Court dismissed the Province’s appeal.

Erie Creek Forest Reserve Ltd. v. Forest Appeals Commission and Private Managed Forest Land Council

Decision Date: April 11, 2017

Court: B.C.S.C., Registrar

Citation: Nelson Registry No. 18824

Erie Creek Forest Reserve Ltd. (“Erie Creek”) sought a judicial review by the BC Supreme Court of a decision issued by the Commission (Erie Creek Forest Reserve Ltd. v. Private Managed Forest Land Council, Decision No. 2014-PMF-001(a)).

The Commission’s decision involved Erie Creek’s appeal against a reconsideration decision issued by the Private Managed Forest Land Council (the “Council”), which confirmed a previous determination of contravention and penalty against Erie Creek. The Council determined that Erie Creek had contravened section 21(3) of the Private Managed Forest Land Council Regulation (the “Regulation”) by failing to maintain the structural integrity of a road prism and failing to ensure the proper functioning of the roads’ drainage systems, resulting in a material adverse effect on fish habitat. Part of a logging road that was used and maintained by Erie Creek failed during the spring of 2012. Two slides occurred on the road within 100 metres of one another, causing damage to the road surface and depositing debris into a fish stream below the road. The Council levied an administrative penalty of $7,500 against Erie Creek and ordered it to conduct remedial work.

On appeal, Erie Creek submitted that the defences of due diligence and mistake of fact in the Private Managed Forest Land Act (the “Act”) applied to absolve it from liability for the contravention, and that the penalty was inconsistent with the factors to be considered under section 26(5) of the Act.
 
For the mistake of fact defence to succeed, Erie Creek had to prove, on a balance of probabilities, that it reasonably and honestly believed in the existence of facts that, if true, would establish that it did not contravene section 21 of the Regulation. The Commission found that Erie Creek may have honestly believed that the road was stable after Erie Creek had repaired it in early 2011, but that belief was not a reasonable one. Erie Creek knew, or should have known, that there was a high risk of slope failure where the slides originated, and that a slope failure could have a material adverse effect on the fish stream below the road. Erie Creek was aware that the road was built many years ago when road-building standards were lower than modern standards, the road has steep side slopes, and is in an area of high precipitation. Also, in early 2011, Erie Creek repaired the road within a one kilometre stretch of where the slides occurred, including at the point where one of the 2012 slides originated. The repairs were done to address chronic erosion. Although precipitation during spring 2012 was higher than normal, it was not unprecedented, and there was no evidence that Erie Creek had considered whether the road could withstand foreseeable high precipitation events during the winter/spring, when Erie Creek’s practice was to leave the road unmonitored.

For the defence of due diligence to succeed, Erie Creek had to prove, on a balance of probabilities, that it took all reasonable steps to avoid the contravention. In particular, it had to show that it had a system to prevent the contravention from occurring, and it took reasonable steps to ensure the effective operation of that system. The Commission found that Erie Creek failed to establish that it had a system in place for assessing the risk of material harm to fish habitat from a failure of the road prism or the road’s drainage systems, and determining whether action should be taken to mitigate those risks. Erie Creek provided no evidence that it considered whether measures should be taken with the road prism or drainage structures to avoid a material adverse effect on fish habitat that could foreseeably arise during the winter/spring, when Erie Creek left the road unmonitored. The road repairs conducted in early 2011 were not part of a system designed to minimize or prevent negative impacts on the environment caused by inadequate maintenance of the road.

Given that neither of the defences applied, the Commission considered whether the penalty was appropriate based on the facts and the factors to be considered under section 26(5) of the Act. Based on those considerations, and given that the maximum penalty is $25,000, the Commission found that the penalty should be reduced to $3,000. In particular, the Commission found that: Erie Creek reported the slides, cooperated with the Council’s investigation, and took steps to repair the damage before it was ordered to do so; Erie Creek had no previous contraventions; the contravention was not deliberate or continuous; Erie Creek received no economic benefit from the contravention; and, although there was a permanent loss of fish habitat, the lost habitat was of marginal importance to fish.

In conclusion, the Commission dismissed the appeal, except for the reduction of the penalty.

Erie Creek sought a judicial review of the Commission’s decision on the grounds that the Commission erred in law with regard to the weight to be given to certain evidence, and in applying the legal test for the defence of due diligence. Erie Creek also asserted that the Commission was biased against it.

Before the matter was heard by the Court, the parties negotiated an agreement to settle the matter.

By consent of the parties, the Court ordered that the petition was dismissed, with each party bearing their own costs.


Canadian Forest Products Ltd. v. British Columbia (Forests, Lands and Natural Resource Operations)

Decision Date: November 25, 2016

Court: B.C.S.C., Justice Butler

Citation: 2016 BCSC 2202

Canadian Forest Products Ltd. (“Canfor”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the B.C. Supreme Court. The Commission’s decision concerned nine stumpage rate determinations issued in 2013 and 2014 by the Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The stumpage rates applied to timber harvested by Canfor under cutting permits (“CPs”) that authorized Canfor to harvest Crown timber located five to fifteen kilometres from the shore of Williston Lake. Stumpage is a fee paid to the government for harvesting Crown timber. In determining stumpage rates for timber harvested in the Interior Region, the Ministry must apply the policies and procedures set out in the Interior Appraisal Manual (“IAM”).

The appeals raised issues regarding the proper interpretation and application of the IAM regarding log transportation costs when calculating stumpage rates for the CPs. The main issue was whether the stumpage rates should be calculated based on “lake tow” (i.e., log transport on a vessel or by boom and tow), or alternatively truck haul, as the primary log transportation method. In particular, the question was whether the Manson log dump on the shore of Williston Lake was “unsuitable” as a log transportation route involving lake tow, for the purposes of determining stumpage rates for the CPs. Lake tow was a lower cost transportation method than truck haul, and therefore, lake tow produced a higher stumpage rate.

The Manson log dump is within Canfor’s operating area, and was used to access Williston Lake for log transport since the 1970’s. In 2004, Canfor acquired a self-propelled barge (the “Barge”) which can carry timber across Williston Lake year-round. Between 2005 and 2007, Canfor operated the Barge to transport logs from many log dumps around Williston Lake, including the Manson log dump. In late 2007, logging and sawmill operations in the Mackenzie area ceased for economic reasons. Canfor anchored the Barge, but intended to reactivate it in the future. Canfor maintained its licence of occupation over Crown land at the Manson log dump, but performed no maintenance there.

In or about 2009, Canfor resumed harvesting in areas around Mackenzie that were within short truck hauling distance to the sawmill. In 2012, Canfor began to consider harvesting in more distant areas. In 2013, Canfor applied for the CPs. The appraisal data that Canfor submitted to the Ministry with its applications for the CPs indicated truck haul as the log transportation method for the entire distance from the CPs to the sawmill.

In October 2013, Canfor requested that the Ministry’s District Manager deem the Manson log dump to be “unsuitable” as a log transportation route pursuant to section 3.1(3) of the IAM. Section 3.1(1) of the IAM provided that the licensee “must submit an appraisal data submission that is capable of being used by the person who determines the stumpage rate… in a manner that will produce the highest stumpage rate.” However, section 3.1(3) of the IAM provided an exception whereby the District Manager could determine that a transportation route was “unsuitable” based on four criteria. In this case, although lake tow would produce the highest stumpage rate, Canfor submitted that truck haul should be the primary transportation method because the Manson log dump was unsuitable until either the Barge was operational or suitable infrastructure for towing was installed.

In November 2013, the District Manager decided that the Manson log dump was suitable as a log transportation route involving lake tow, for the purposes of determining stumpage rates for the CPs. The Ministry determined the stumpage rates for the CPs based on lake tow as the log transportation method from the log dump across Williston Lake.

In 2014, Canfor appealed the stumpage determinations on the basis that log transport by water via the Manson log dump is “unsuitable” within the meaning of section 3.1(3) of the IAM. Canfor submitted that, in order for the Manson log dump to be suitable, it must actually be ready for use, and it was not ready for use when the stumpage determinations were issued.

Meanwhile, during 2014, Canfor retained an engineer to advise on the work necessary to bring the Manson log dump back into service for use by the Barge. The engineer’s recommendations included re-grading ramps to the foreshore that had eroded, installing rock along the shoreline to prevent erosion, and expanding the site’s log storage area. During 2015, Canfor conducted work at the log dump, with the intention of beginning to use the site in September 2015.

In deciding the appeals, the main issue before the Commission was whether the Manson log dump was unsuitable for water transportation when the stumpage determinations were made. The other issues included whether the District Manager’s decision regarding the suitability of the Manson log dump was inconsistent with the object and purposes of the IAM.

The Commission rejected Canfor’s argument that a log dump must be ready for use in order to be “suitable” for the purposes of determining stumpage rates. The Commission found that a site is suitable if it possesses physical characteristics that make it capable of being put into use without extraordinary effort or expense. Based on the evidence, the Commission found that the Manson log dump possessed physical features that made it suitable as a log transportation route in the past, and the overall physical condition of the site in 2013/2014 was unchanged compared to when it was used in the past. Although there had been erosion since the site was last used, it was no different than the erosion that occurred when the site was in use, even if the cumulative effect was greater due to the deferral of maintenance. Canfor did not need to take extraordinary measures to return the site to operating condition. Most of the work that Canfor’s engineer had recommended was for the purpose of making the site more efficient, and not to make the site safe for use.

The Commission also found that the availability of the Barge was irrelevant to the suitability of the Manson log dump as a log transportation route, because the criteria in section 3.1(3) of the IAM focus on the physical characteristics of the site.

In addition, the Commission held that the District Manager’s decision was consistent with section 3.1 of the IAM, and the market pricing system which underlies the IAM. The parties’ expert witnesses agreed that the purpose of the market pricing system is to resemble, but not mirror, the actual operations of licensees in similar tracts of timber. The Commission held that it would be inconsistent with the market pricing system to determine stumpage rates based on the actual operations that a particular licensee chooses to use at a particular location.

The Commission dismissed the appeals. Canfor appealed the Commission’s decision to the BC Supreme Court, with respect to eight of the nine stumpage determinations. Canfor’s appeal raised two questions: (1) whether the Commission erred in its interpretation of the word “unsuitable” in section 3.1 of the IAM; and (2) whether the Commission misapprehended the evidence with respect to the physical characteristics of the Manson log dump.

First, the Court determined that the Commission’s interpretation of the IAM should be reviewed based on a standard of “reasonableness”, which is concerned both with the existence of justification, transparency and intelligibility in the decision-making process, as well as whether the decision falls within a range of acceptable outcomes which are defensible in respect of the facts and law. The Court held that the Commission is an expert tribunal tasked with adjudicating highly technical matters under provincial forestry legislation. Also, the Court noted that in a previous appeal of a Commission decision involving stumpage rates, the Court had held that the reasonableness standard should be applied.

Next, the Court concluded that the Commission’s decision was reasonable. The Court held that the Commission had considered all of the evidence and arguments presented to it, and its conclusion that the Manson Site was not “unsuitable” was well within the range of reasonable conclusions. The Commission appropriately considered the legislative scheme, and all of the evidence including the historical use of the site and the expert evidence. Further, the Commission did not misapprehend the evidence of Canfor’s expert, let alone do so in a way which could amount to an error of law. Rather, the Commission decided to give that evidence little weight when determining the suitability of the Manson Site. That approach was open to it in light of all the evidence.

Accordingly, the Court dismissed Canfor’s appeal.

Oceanview Golf Resort & Spa Ltd. v. Private Managed Forest Land Council and Forest Appeals Commission

Decision date: December 16, 2015

Court: B.C.S.C., Justice Thompson

Citation: 2015 BCSC 2371

Oceanview Golf Resort & Spa Ltd. (“Oceanview”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the BC Supreme Court. The Commission’s decision concerned the levying of an exit fee by the Private Managed Forest Land Council (the “Council”) on five contiguous parcels of land (the “Lands”) owned by Oceanview. The Lands are in the midst of a residential subdivision development process within the City of Nanaimo. The Lands were previously private managed forest land.

The “managed forest” class of property is established under the Assessment Act. Land classified as managed forest is taxed at a lower rate than residential land. Owners can enter and exit their land from the managed forest class by providing notice to the Council and meeting certain requirements under the under the Private Managed Forest Land Act (the “PMFL Act”) and its regulations. One of the requirements for entry is to submit a forest management commitment to the Council for approval. When private managed forest land is sold, the land will be declassified under the Assessment Act if the buyer fails to submit a new management commitment to the Council. When land is declassified, the buyer may be liable under the PMFL Act and Private Managed Forest Land Regulation (the “Regulation”) to pay an exit fee, if the land was managed forest land for less than 15 consecutive years and none of the exemptions in section 3 of the Regulation apply. The Council calculates the exit fee based on regulations, and is paid by the land owner to the local municipal government. The exit fee results in the local government recapturing part of the property taxes that were avoided while the land was classified as managed forest land.

In 2005, Oceanview’s corporate predecessor, Cable Bay Lands Inc. (“Cable Bay”), purchased the Lands. At that time, the Lands were classified as managed forest. When Cable Bay purchased the Lands, it failed to submit a management commitment to the Council. As a result, the Lands were declassified as managed forest land.

In 2007, the Lands were reclassified as managed forest land after Cable Bay submitted a management commitment to the Council. In January 2008, parcels 3 and 4 of the Lands were declassified as managed forest land after Cable Bay requested their withdrawal. Cable Bay paid an exit fee to Nanaimo for the withdrawal. In January 2010, at Cable Bay’s request, parcels 3 and 4 were reclassified as managed forest land.
 
Meanwhile, in September 2008, Nanaimo passed a new Official Community Plan (“OCP”) Bylaw that included designation of the Lands as a resort centre, which is the first phase in a four-phase development process. In February 2010, Nanaimo approved a Master Plan for the proposed development, which is the second phase in the development process. The Master Plan designates portions of the Lands for future use as park land, right of ways, and public utilities.

In 2011, at Oceanview’s request, the Lands were declassified as managed forest land. Subsequently, the Council notified Oceanview that the exit fee was $312,957.20. Oceanview requested that the Council reconsider the exit fee. The Council upheld its previous decision regarding the exit fee.

Oceanview appealed the Council’s decision to the Commission. Oceanview requested that the Commission rescind the Council’s decision and exempt all of the Lands from the exit fee; or alternatively, recalculate the exit fee based on exemptions under the Regulation for the areas designated for future use as parks, public utilities and right of ways.

In Oceanview Golf Resort & Spa Ltd. v. Private Manager Forest Land Council (Decision No. 2012-PMF-001(a), June 22, 2012), the Commission held that when the Lands were declassified in 2011, they had not been classified as managed forest land for more than 15 consecutive years, and therefore, they were not exempt from the exit fee under section 2(5) of the Regulation. Cable Bay’s failure to file a management commitment when it purchased the Lands led to the declassification. Cable Bay should have been aware of its legal obligations, and Oceanview, as Cable Bay’s successor, could not now seek an exemption under section 2(5). In addition, the Commission held that section 2(1) of the Regulation requires the exit fee to be determined when land is declassified, rather than at some future date when the development process is complete. The Council has no discretion to delay the determination of the exit fee, and even if it did, the process would be unmanageable because the Council would have to monitor developments to determine when they are complete. The Commission also found that delaying the determination of the exit fee would be contrary to the statutory scheme, which encourages owners of private forest land to manage their land for forestry over the long term in return for a lower tax rate.

Finally, the Commission held that when the Lands were declassified in 2011, no portion of the Lands fell within the exemptions in sections 3(1)(a) or (c) of the Regulation, which states that exemptions apply to declassified land that “is” gifted to a government or “is” subject to a right of way or easement. When the Lands were declassified, none of it had been transferred to Nanaimo. Furthermore, the OCP Bylaw could be amended to change the land uses contemplated in the Master Plan. Consequently, the designations in the Master Plan should not be taken as certainties upon which exemptions from the exit fees may rest. Accordingly, the Commission dismissed the appeal.

Oceanview appealed the Commission’s decision to the BC Supreme Court, on the basis that the Commission erred in finding: (1) that section 2(1) of the Regulation required the Council to determine the exit fee when the Lands were declassified, rather than upon completion of the development process with respect to the Lands; and (2) that Oceanview is not entitled to an exemption from the exit fee under section 3(1) of the Regulation to the extent that the Lands will be gifted to the Nanaimo or subject to rights of way or easements.

First, the BC Supreme Court addressed the standard of review that applied to the Commission’s decision. The Court found that forestry practices are central to the Commission’s function, and the PMFL Act and its regulations are intended to promote certain forestry practices on private land. The exit fees and exemption provisions are a central part of this scheme. The Council is empowered to make exit fee and exemption decisions, and the Commission, as an appeal body, has particular familiarity with the legislation delineating Council’s functions. Consequently, the Court applied a standard of “reasonableness” in reviewing the Commission’s decision. This meant that Oceanview had the onus of establishing that the Commission’s interpretation of the Regulation fell outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Turning to the statutory interpretation issues, the Court found that the Commission’s interpretation of the Regulation was not unreasonable. The Court held that the words in section 2(1) of the Regulation obligate the Council to determine the exit fee when managed forest land is declassified. Although one of the objects of the exit fee may be to discourage the program being used as a temporary property tax shelter, as asserted by Oceanview, this narrowly stated purpose is not inconsistent with the Commission’s more broadly expressed object of the exit fee: to promote the continued inclusion of property in the private managed forests land program. The Court found that the prompt imposition of an exit fee upon declassification tended to support this broader purpose. Regarding section 3(1) of the Regulation, the Court held that the grammatical and ordinary sense of the word “is” in that section could not be stretched to encompass what will be. It was not unreasonable for the Commission to hold that the rights of way or alleged gift did not exist at the time of the Council’s exit fee determination, and therefore, no exemption was applicable under section 3(1). To construe the phrase “is subject to” as meaning “is or will be subject to” or “is or may in the future be subject to” would be taking impermissible liberties with the clear language of section 3(1) of the Regulation.

In addition, the Court concluded that, even if it was wrong regarding the proper standard of review, and the less deferential standard of “correctness” should apply, the Commission’s interpretation of sections 2(1) and 3(1) of the Regulation were correct and the Commission correctly held that Oceanview was not entitled to an exit fee exemption.

Accordingly, the Court dismissed Oceanview’s appeal, and upheld the Commission’s decision.


Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Forests, Lands and Natural Resource Operations v. The Forest Appeals Commission and Western Forest Products Inc.

Decision date: November 21, 2014

Court: B.C.S.C., Justice Bruce

Citation: 2014 BCSC 2192

The Province of British Columbia (the “Province”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the BC Supreme Court.

The Commission’s decision concerned the stumpage rate that Western Forest Products Inc. (“Western”) should pay for harvesting Crown timber. Western had appealed two stumpage determinations issued by the Timber Pricing Coordinator (the “Coordinator”), Coast Forest Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The stumpage determinations set out the stumpage rates that applied to Crown timber harvested under cutting permit 300 (“CP 300”), which covers an area within a tree farm licence held by Western.

Stumpage rates in the Coast region of the Province are determined in accordance with the policies and procedures in the Coast Appraisal Manual (“CAM”), which is approved by the Minister of Forests, Lands and Natural Resource Operations under section 105(1) of the Forest Act, and has the force of law. Under the CAM, stumpage rates are affected by certain variables. The variable at issue in this case was the amount that Western could claim for estimated road development costs. Western incurred road development costs to access two CP areas, including CP 300, for harvesting.

The Coordinator had determined the stumpage rates for CP 300 using the dollar amount for estimated road development costs that was set out in an extended road amortization agreement (the “Agreement”) previously signed by Western and the Ministry. The Agreement had apportioned the estimated road development costs between CP 300 and another CP that was harvested before CP 300. The Agreement, which was signed before the earlier CP was harvested, indicated the apportionment between the two CPs as both percentages and dollar amounts. Months after the Agreement was signed, Western provided the Coordinator with updated road development cost estimates as part of the appraisal data it provided with its application for CP 300, and Western requested that the Ministry amend the Agreement to reflect the updated cost estimates. The Ministry refused to amend the Agreement, and the Coordinator calculated the stumpage rates for CP 300 using the dollar amounts set out in the Agreement.

In its appeal to the Commission, Western’s main arguments were: (1) the Coordinator determined the stumpage rates based on information that was no longer accurate, contrary to section 105.1 of the Forest Act (the “Act”), the CAM, the Foresters Act, and past Ministry interpretations of the CAM; (2) the Ministry exercised its discretion under the CAM unreasonably when it declined to amend the Agreement to account for the more accurate information that was available when Western submitted its appraisal data for CP 300; and alternatively, (3) the Agreement required the Coordinator to determine the extended road amortization cost allowances applicable to CP 300 based on the information available when Western submitted its appraisal data for CP 300.

In Western Forest Products Inc. v. Government of British Columbia (Decision Nos. 2013-FA-001(a) and 002(a), issued December 2, 2013), the Commission held that, as a specialized tribunal with expertise in deciding appeals under forestry legislation, and de novo powers in hearing those appeals, it was not obligated to give deference to the Coordinator’s decisions. Next, the Commission found that section 105.1 of the Act, read together with the Foresters Act and its bylaws, requires licensees and their forest professionals to submit accurate data to the Ministry for stumpage appraisal purposes, and that section 3.2 of the CAM, which authorizes the Ministry to review appraisal data for errors or emissions, is consistent with those accuracy requirements. Accordingly, the Commission found that the accuracy of the licensee’s data is a relevant consideration in a stumpage appraisal.

Turning to the nature of the Commission’s jurisdiction in regard to the Agreement, the Commission found that extended road amortization agreements operate as an integral part of the stumpage appraisal process. The Ministry’s exercise of discretion in making or amending an extended road amortization agreement is an “intermediate component” of that process. Therefore, the Commission’s jurisdiction in deciding stumpage appeals must necessarily include the interpretation and consideration of the Agreement itself, and the jurisdiction to consider whether the Ministry exercised its discretion reasonably in denying the request to amend the Agreement.

Further, the Commission found that the Coordinator should have applied the apportioned percentages in the Agreement to the updated cost estimates that Western provided with the appraisal data for CP 300. The Commission found that the Agreement was unclear as the whether the parties’ intention was to apply the percentage apportionments or the dollar amounts specified in the Agreement. Given the lack of clarity, the Commission found that the Agreement must be read in the context of the CAM and the Act, which imply that the dollar values within the Agreement should be updated when the tributary or subsequent CP (i.e., CP 300) is appraised, to be current with the cost base of the CAM in effect at that time.

Finally, the Commission found that the Coordinator exercised his discretion in an unreasonable manner in refusing to apply the updated cost estimates, which were the most accurate information available when Western submitted the data for CP 300, and in refusing to amend the Agreement. His exercise of discretion was unreasonable because it was inconsistent with section 105.1 of the Act, the overall scheme of the CAM, and the objectives and intent of the governing legislation. Accordingly, the Coordinator’s determinations were reversed, and the matter was remitted back to the Coordinator with directions to re-determine the stumpage rates for CP 300 using the updated cost estimates for CP 300, and to amend the dollar amount in the Agreement accordingly.

The Province appealed the Commission’s decision to the BC Supreme Court. The Province raised four main issues in the appeal: (1) whether there was a reasonable apprehension of bias because the Commission member who decided the appeal is employed by a forest industry association and his work includes lobbying the government on forestry matters; (2) whether the Commission exceeded its jurisdiction in reviewing the Ministry’s exercise of a contractual authority in relation to the Agreement; (3) if the Commission had jurisdiction to review the stumpage determinations, did it exceed its jurisdiction by failing to give deference to the Coordinator; and (4) whether the Commission erred in its interpretation the CAM, the Agreement, and the Act.

First, the BC Supreme Court addressed the standard of review that applied to the Commission’s decision. The Court held that a standard of fairness, with no deference to the Commission, applied when considering the question of reasonable apprehension of bias. However, regarding the merits of the Commission’s decision, including the Commission’s interpretation of the Agreement, the CAM, and the Act, the Court held that a standard of reasonableness applied. According to the reasonableness standard, a decision is unreasonable if it is outside the range of acceptable or possible outcomes and is indefensible in respect of the law and facts in the case.

Turning to the substantive issues, the Court found that there was no reasonable apprehension of bias in the circumstances. The Court considered that most members of the Commission are part-time, and part-time members are not expected to give up their employment. The Court also considered that the pool of qualified potential members with the expertise to decide stumpage appeals is small, and consists of people who have worked in the forest industry or have close ties to the industry. The member in this case had been employed in the forest industry for decades. His employment in the industry was known to the Government when it recommended him for appointment to the Commission, and his work had long involved some form of lobbying for changes to forest practices in the Province. He had not lobbied for amendments to the CAM or the appraisal manual that applies to the Interior region, and there was no evidence that he had a closed mind regarding the relevant provisions of the CAM or the Act prior to the appeal.

On the substantive issues, the Court held that the Commission had the jurisdiction to determine the issues raised by the appeal. In that regard, the Court agreed with the Commission that the Agreement is an integral part of the stumpage appraisal process in the CAM, and its terms are dictated by the CAM. The Court also found that the Commission properly characterized the decision not to amend the Agreement as an exercise of statutory discretion, which must be exercised in a reasonable manner. However, the Court held that the Commission’s finding that the Agreement was unclear was unreasonable. The Court held that the Agreement indicated that the dollar amounts specified in it were to be included in the appraisals of the two CPs, including CP 300, and this interpretation is consistent with the CAM. The Court also found that the underlying premise of the CAM and section 105.1 of the Act is that the licensee must submit accurate information only when input form the licensee is required, and the information must only be accurate based on the standards set by the CAM. The Court found that there was no need to recalculate the road development costs stipulated in the Agreement when Western submitted the appraisal data for CP 300, because the dollar amounts in the Agreement were deemed by the Agreement to be consistent with the cost base in the CAM and were to be included in the future appraisal of CP 300, whenever it was appraised. In addition, the Court held that the Commission should not have interpreted the accuracy requirement in section 105.1 of the Act to be a paramount and over-riding principle, because the CAM only permits reappraisals of stumpage rates in certain circumstances, and those circumstances did not apply in this case. Consequently, the Court concluded that the Commission’s interpretation of section 105.1 of the Act was unreasonable, and as a consequence, the Commission erred when it concluded that the refusal to amend the Agreement was inconsistent with the object and purpose of section 105.1 and was an unreasonable exercise of discretion. In conclusion, the Court found that the Commission’s decision was not within the range of acceptable outcomes.

Accordingly, the appeal was allowed, and the matter was remitted back to the Commission for re-hearing.

Her Majesty The Queen in Right of the Province of British Columbia as represented by the Minister of Forests, Lands and Natural Resource Operations v. The Forest Appeals Commission and Western Forest Products Inc. (Coast Forest Products Association and Council of Forest Industries, Applicants)

Decision Date: June 19, 2014

Court: B.C.S.C., Justice Ehrcke

Citation: 2014 BCSC 2534

This decision by the BC Supreme Court addressed an application to intervene in an appeal by the Province against a decision of the Commission.

TThe Commission’s decision in Western Forest Products Inc. v. Government of British Columbia (Decision Nos. 2013-FA-001(a) and 002(a), issued December 2, 2013), concerned the stumpage rate that Western Forest Products Inc. (“Western”) must pay for harvesting Crown timber. Western had appealed two stumpage determinations issued by the Timber Pricing Coordinator (the “Coordinator”), Coast Forest Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The appeals arose from a disagreement between Western and the Ministry about the proper interpretation and application of an extended road amortization agreement in the context of the Coast Appraisal Manual and the Forest Act. Western’s appeals to the Commission were allowed.

The Province appealed the Commission’s decision to the BC Supreme Court. The Province raised four main issues in the appeal to the Court: (1) whether there was a reasonable apprehension of bias because the Commission member who decided the appeal is employed by a forest industry association and his work includes lobbying the government on forestry matters; (2) whether the Commission exceeded its jurisdiction in reviewing the Ministry’s exercise of a contractual authority in relation to the extended road amortization agreement; (3) if the Commission had jurisdiction to review the stumpage determinations, did it exceed its jurisdiction by failing to give deference to the Coordinator; and (4) whether the Commission erred in its interpretation of the Coast Appraisal Manual, the extended road amortization agreement, and the Forest Act.

Before the appeal was heard by the Court, the Coast Forest Products Association and Council of Forest Industries (the “Applicants”) applied to intervene in the Province’s appeal against the Commission’s decision regarding stumpage rates in Western Forest Products Inc. v. Government of British Columbia (Decision Nos. 2013-FA-001(a) and 002(a), issued December 2, 2013). The Applicants are industry associations and their members are primarily forest companies. Western Forest Products Ltd. (“Western”), a respondent in the court proceeding, is a member of the Coast Forest Products Association.

The Applicants sought intervener status so they could make submissions on: (1) whether the Commission was obligated to defer to the discretionary decisions made by Ministry officials in the context of determining stumpage rates; and, (2) the interaction between the Coast Appraisal Manual, the professional obligations of forestry professionals, and section 105.1 of the Forest Act as it relates to the stumpage regime. They submitted that those issues were of general concern and importance to their members, and they could offer a unique and useful perspective to the Court.

The Province opposed the application for intervener status. Western and the Commission consented to the application.

The Court found that the Applicants lacked a direct interest in the appeal. In addition, the Court found that although Western had not yet provided its submissions to the Court on the merits of the appeal, the Applicants’ proposed submissions were similar to Western’s previous submissions to the Commission. On that basis, the Court concluded that the Applicants’ perspectives did not differ significantly from Western’s, and their intervention would not bring a unique perspective to the proceedings. The Court dismissed the application to intervene.

Her Majesty the Queen in Right of the Province of British Columbia v. Canadian National Railway and Forest Appeals Commission

Decision date: December 10, 2012

Court: BCSC, Justice Armstrong

Cite: 2012 BCSC 1856

The Province of British Columbia (the “Province”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the BC Supreme Court. The decision relates to a cost recovery order issued under the Wildfire Act, and more specifically, the amount that CNR was obligated to pay as a result of causing a fire that damaged or destroyed Crown timber.

On July 29, 2005, a CNR train caused a fire that damaged or destroyed 25,010.8 cubic metres of Crown timber. At the time of the fire, there were no approved plans to harvest the timber. In the Fall of 2006, the salvageable timber was harvested. A total of $4,874.80 in stumpage was paid for 19,809.79 cubic metres of timber, at a stumpage rate of $0.25 per cubic metre of timber.

In 2008, the Fire Centre Manager (the “Manager”), Ministry of Forests and Range (the “Ministry”), determined that CNR had contravened the Wildfire Act and the Wildfire Regulation in causing the fire. The Manager levied penalties of $1,000 for the contravention of the Wildfire Act, and $10,000 for the contravention of the Wildfire Regulation. The Manager also ordered CNR to pay $254,680.38 for the damaged or destroyed Crown timber, which was 75 percent of the timber’s stumpage value at the time of the fire, as calculated by the Manager. CNR appealed to the Commission.

The parties settled several issues before the appeal was heard. The remaining issue for the Commission to decide was the value of the Crown timber that was damaged or destroyed in the fire. The parties agreed on the volume of damaged or destroyed timber, but disagreed on the applicable valuation date for the timber. CNR argued that the timber value should be based on the stumpage rate that applied when the salvaged timber was scaled, which resulted in a value of $6,252.50. In addition, CNR submitted that the Manager had jurisdiction to reduce the amount to 75 percent of the timber value, and that CNR should pay nothing for the timber because stumpage was paid when the timber was salvaged. The Government argued that the timber value should be based on the stumpage rate that applied on the date that the fire ignited, that the Manager had no jurisdiction to reduce the amount to 75 percent of the timber value, and that the claim for cost recovery under the Wildfire Act was unrelated to the stumpage collected when the timber was salvaged.

In Canadian National Railway v. Government of British Columbia (Decision Nos. 2008-WFA-001(a) & 2008-WFA-002(a), issued June 27, 2011), the Commission found that section 27(1)(c) of the Wildfire Act together with section 30(a) of the Wildfire Regulation require that the value of damaged or destroyed timber must be calculated by ascertaining the amount of stumpage applicable under the Forest Act. The Commission found that, under section 103(1) of the Forest Act, if a harvesting agreement had been in place, the damaged timber would have been valued based on the stumpage rate when the timber was scaled, which would have been $0.25 per cubic metre. The Commission also considered section 103(3) of the Forest Act, which describes the procedure for calculating the stumpage owing when a person “cuts, damages, destroys or removes Crown timber without authorization”. Section 103(3) contemplates using the stumpage rate that “would likely have applied to the timber” under section 105(1) of the Forest Act “if rights to the timber had been granted under an agreement entered into under” the Forest Act. The Commission interpreted this to mean that the applicable stumpage rate is the one that would have applied when the timber might have been harvested. The Commission concluded, in this case, the appropriate stumpage rate is not the one that applied when the fire occurred, given that no cutting permit was in place at that time. Rather, it is the rate that would likely have applied in the future, and the most likely future rate is the one that applied when the timber was cruised or scaled; namely, $0.25 per cubic metre.

In addition, the Commission found that the Manager had no statutory authority to reduce the cost recovery order to 75 percent of the timber’s value, and nothing in the legislation indicated that the stumpage paid on the salvaged timber should be applied as a “credit” towards the amount owed by CNR. Accordingly, the Commission concluded that the cost recovery order should be for $6,252.50.

The Province appealed the Commission’s decision to the BC Supreme Court. The Province argued that the Commission erred in law when it held that section 30(a) of the Wildfire Regulation requires the amount of stumpage applicable to damaged or destroyed timber to be ascertained on the date when the timber was scaled or might have been harvested, rather than on the date of destruction. The Province submitted that the Crown’s statutory right to recover the value of damaged or destroyed timber is in the nature of common law “damages,” which crystallize at the time the damage occurs.

The Court applied the standard of “reasonableness” in reviewing the Commission’s decision. This meant that, for the Province to succeed, the Court had to be satisfied that the Commission’s reasoning on the timber valuation question was outside of the range of possible or acceptable outcomes, and indefensible in respect of the law and facts.

The Court held that it was open to the Commission’s conclusion on the valuation date was a reasonable exercise of its specialized expertise in relation to forestry statutes, and was also correct. The Commission acted reasonably in concluding that common law principles on damages did not apply, because the legislation creates a complete scheme for valuing lost Crown timber, and there is clear legislative intent not to follow the common law principles on damages.

In addition, the Court found that the Commission’s decision was based on factual considerations that were reasonable and adequately justified. The Commission clearly and rationally explained its decision regarding the appropriate valuation date. The Commission’s specialized skill and experience qualified it to interpret the legislation and reach a different conclusion than the Manager. It was reasonable for the Commission to decide that the factors affecting the likely valuation date would have included the fact that harvesting rights would be unexercised until a cutting permit was issued.

Accordingly, the appeal was dismissed and the Commission’s decision was upheld.

Her Majesty the Queen in Right of the Province of British Columbia v. Louisiana-Pacific Canada Ltd. and the Forest Appeals Commission

Decision date: October 22, 2012

Court: BCSC, Justice Harvey

Cite: 2012 BCSC 1546

Louisiana-Pacific Canada Ltd. 1(“LP”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the British Columbia Supreme Court. The matter arose from the following circumstances.

In late October 2007, LP staff ignited three piles of logging debris in a cutblock. At that time, LP staff thought that snow on the cutblock would act as a fuel break to prevent the fires from spreading. One day after the fires were ignited, LP staff found that the fires had spread into the fuel break. However, LP staff decided that an adequate fuel break of snow was still in place, and the fires would not spread any further. LP staff did not take fire control action or report the spread of the fires to the Ministry of Forests and Range (the “Ministry”). A few days later, Ministry staff found that the fires had burned approximately three hectares of seedlings in the cutblock. The Ministry staff observed smoke coming from the piles and other areas in the cutblock. All of the fires self-extinguished before November 2007.

In October 2009, the Manager of the Ministry’s Southeast Fire Centre (the “Manager”) determined that LP had contravened sections 22(3) and 22(4)(a), (b) and (c) of the Wildfire Regulation (the “Regulation”) by failing to ensure that its fires did not escape, and by failing to take fire control action or report the fires when the fires spread beyond the burn area or otherwise became out of control. The Manager levied penalties totalling $4,230 for the contraventions.

LP appealed to the Commission.

In Louisiana-Pacific Canada Ltd. v. Government of British Columbia (Decision No. 2009-WFA-004(b), issued May 16, 2011), the main issue was whether LP had contravened sections 22(3) or 22(4) of the Regulation. On that issue, the Commission’s three-person panel split 2-1 in finding that LP had not contravened the Regulation.

Specifically, the majority of the Commission found that the fires did not “escape” within the meaning of section 22(3) of the Regulation. The majority found that “escape” in that section means when a fire burns beyond the cutblock, as opposed to when a fire burns beyond the intended burn area. Although the fires spread beyond the burn area, they did not spread beyond the cutblock, and there was no damage to the environment, public property, private property or other values protected by the legislation. Since the fire did not “escape”, there was no contravention of section 22(3).

In addition, the majority held that section 22(4) of the Regulation was unclear. Where section 22(4) states “spreads beyond the burn area or is otherwise out of control”, the majority found that the word “or” was intended to mean “and”. Therefore, the requirements in section 22(4) to take fire control action and report a fire are triggered when a fire is beyond the burn area and is out of control. The majority concluded that, in this case, although the fire spread beyond the burn area, the fire was never “out of control”, because it was never beyond the capacity of the people or equipment required to be present, or the site conditions, to prevent further spread of the fire to forest land or other values that the legislation protects. Since the fire was not “out of control”, there was no contravention of section 22(4).

Accordingly, the majority of the Commission concluded that the contraventions and penalties against LP should be rescinded.

The Province appealed the Commission’s decision to the BC Supreme Court. The Province submitted that the majority of the Commission erred in law: (1) in its interpretation of the word “escape” in section 22(3) of the Regulation; and (2) when it replaced the word “or” in section 22(4) with the word “and”. The parties agreed that the appropriate standard for the Court to apply in reviewing the Commission’s decision was that of “reasonableness”, which means that the Court recognized the Commission’s specialized expertise and would give some deference to the Commission’s reasons for its decision.

The Supreme Court concluded that the majority’s interpretation of the word “escape” in section 22(3) was reasonable, because it was in accordance with the principles of statutory interpretation and was within the range of possible acceptable outcomes. The Supreme Court also held that the majority’s interpretation of section 22(4) was reasonable and accords with the legislative intent underlying the Regulation.

Accordingly, the appeal was dismissed and the Commission’s decision was upheld.

Western Forest Products Inc. v. Forest Appeals Commission and Her Majesty the Queen in Right of the Province of British Columbia

Decision date: May 28, 2012

Court: BCSC, Johnston

Cite: 2012 BCSC 772

Western Forest Products Inc. (“Western”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the British Columbia Supreme Court. The decision relates to the stumpage rate that Western should pay for harvesting Crown timber in nine cutting permit (“CP”) areas on the West Coast of Vancouver Island near Jordan River. The appeal concerned the interpretation of provisions of the Coast Appraisal Manual (“CAM”). The CAM sets out the policies and procedures that apply to stumpage appraisals in the Coast Region. The CAM is approved by the Minister of Forests, Lands and Natural Resource Operations under section 105(1) of the Forest Act, and has the force of law.

Under the CAM, stumpage rates are affected by variables, and the variable at issue in this case was the selection of the appraisal log dump. The stumpage rates were determined using a version of the CAM that incorporates the market pricing system (“MPS”). The MPS is an equation-based model that uses data from past winning bids for Crown timber sold through a competitive bidding process. Data from competitive timber sales are applied in calculating stumpage rates for timber held under long-term tenures, such as the nine CPs in this case, which are not sold through a competitive bidding process. The truck haul distance is a variable in the MPS equation in the CAM. The truck haul distance variable is the volume weighted average one-way haul distance from the geographic centre of the CP area to the appraisal log dump. The farther the appraisal log dump is by road from the CP area, the longer the truck haul distance. All other variables being equal, the longer the truck haul distance between the CP area and the appraisal log dump, the lower the stumpage rate. The phrase “appraisal log dump” is defined in the CAM, but the parties disputed how that definition should be interpreted and applied for the purpose of selecting the appropriate appraisal log dump.

In this case, Western had proposed that the Shoal Island log dump on the East Coast of Vancouver Island was the appropriate choice of appraisal log dump for the nine CPs, but the Regional Appraisal Coordinator, Ministry of Forests (the “Ministry”), selected the Jordan River log dump as the appraisal log dump. The Jordan River log dump is 70 to 80 kilometres closer to the CP areas than the Shoal Island log dump, and this significantly increased the amount of stumpage that Western had to pay to the Province. The Jordan River log dump is owned by Western, and was used almost exclusively by Western during the relevant time period. Most of the timber harvested from the nine CP areas was hauled to the Jordan River log dump.

Western appealed the stumpage rate determinations to the Commission, on the grounds that the Regional Appraisal Coordinator erred by selecting the Jordan River log dump rather than the Shoal Island log dump as the appraisal log dump. Western submitted that the Jordan River log dump was not a reasonable choice because it was unavailable to any operator other than Western. Western argued that in choosing an “appraisal log dump” as defined in the CAM, the market pricing system requires the selection of the closest log dump by road to the centre of the CP area that is operational and generally available to all licensees, which in this case was the Shoal Island log dump.

The Ministry submitted that the definition of “appraisal log dump” in the CAM provides the Regional Appraisal Coordinator with no discretion when selecting an appraisal log dump. The Coordinator must pick the closest log dump by road to the centre of the CP area, which in this case was the Jordan River log dump.

In Western Forest Products Inc. v. Government of British Columbia (Decision Nos. 2005-FA-002(a), 003(a), 009(a), 010(a), 048(a), 078(a), 131(a); 2006-FA-020(a) and 031(a), issued May 19, 2011), the Commission considered two issues: (1) whether the Regional Appraisal Coordinator exercises discretion when selecting the appraisal log dump; and if so, (2) whether the Coordinator exercised his discretion in an unreasonable manner when he selected Jordan River as the appraisal log dump for the CPs. Applying the principles of statutory interpretation to the relevant provisions of the CAM, the Commission held that the Regional Appraisal Coordinator exercises discretion when selecting an appraisal log dump, and in this case, he exercised his discretion in a reasonable manner when he selected Jordan River as the appraisal log dump.

Specifically, the Commission found that section 4(e) of the Ministry of Forests and Range Act requires the Ministry to assert its financial interests in Crown forest resources in an equitable manner. However, the equitable application of the CAM may result in different stumpage rates for different licensees harvesting different stands of timber from the same general area. The Commission also found that “appraisal log dump” is defined in the CAM to mean the closest site to the CP area that is a functional log dump at the time of appraisal, and is available for use by both a hypothetical market bidder and the affected licence holder. The evidence established that the winning bids at auctions for timber located near the nine CP areas were appraised to the Jordan River log dump despite that fact that those bidders did not use that log dump, and those winning bids were used to develop the CAM equations that applied in this case. There was no reason why a hypothetical winning bidder, participating in a hypothetical timber auction, could not have made a winning bid that took into account the haul distance to the Jordan River log dump.

In addition, the Commission found that section 4.1(1) of the CAM requires the Regional Appraisal Coordinator to select the appraisal log dump that will result in the highest stumpage rate that a hypothetical winning bidder would pay if the timber were sold at an auction. In this case, the Jordan River log dump was the appropriate choice because it was the closest log dump to the nine CP areas that was functional and available to a hypothetical winning bidder at the time of appraisal, and it resulted in a higher stumpage rate than if the Shoal Island log dump was selected. In conclusion, the Commission confirmed the nine stumpage rate determinations.

Western appealed the Commission’s decision to the BC Supreme Court. Western argued that the Commission exceeded its jurisdiction by finding that the Jordan River log dump was the proper appraisal log dump, given that other licensees harvesting timber near the nine CP areas were appraised to Shoal Island, in the absence of a policy or procedure in the CAM that would permit different treatment to similarly situated licensees. Western also argued that the Commission erred in law in concluding that the Jordan River log dump was available to at least one hypothetical winning bidder when there was no evidence to support such a conclusion.

The Supreme Court applied the test set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9. The Supreme Court also noted that the Supreme Court of Canada’s decision in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, had seriously weakened Western’s argument that the Commission exceeded its jurisdiction. On the jurisdictional issue, the Court held that the Commission was interpreting its home statutes (the CAM and the Forest Act) and a related statute (the Ministry of Forests and Range Act) when it reached its conclusions about the Regional Appraisal Coordinator’s determinations, and the Commission’s interpretations were well within the range of reasonable outcomes.

Next, the Supreme Court considered whether the Commission erred in law when it found that the Jordan River log dump was available for use by a hypothetical winning bidder. The Supreme Court concluded that the Commission’s finding was reasonable. The Supreme Court found that the Commission’s reasons indicate that it included Western as a hypothetical winning bidder, and it considered that a private forest land owner had occasionally used the Jordan River log dump. The Commission also referred to evidence that the Jordan River log dump was selected as an appraisal log dump for auctioned timber sales that were used to generate the equations in the CAM. The Supreme Court held that there was evidence upon which the Commission could have found that the Jordan River log dump was available to a hypothetical winning bidder, and there was no dispute that it was a functioning log dump. The Supreme Court also held that to exclude Western from consideration as a hypothetical winning bidder would be illogical.

Accordingly, the appeal was dismissed and the Commission’s decision was upheld.

Her Majesty the Queen in Right of the Province of British Columbia v. International Forest Products Limited and Forest Appeals Commission

Decision date: May 22, 2012

Court: BCSC, Brown

Cite: 2012 BCSC 746

The Province of British Columbia (the “Province”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the British Columbia Supreme Court. The decision relates to the stumpage rate that International Forest Products Limited (“Interfor”) should pay for harvesting Crown timber in a cutting permit (“CP”) area on Northern Vancouver Island. The appeal concerned the interpretation of provisions of the Coast Appraisal Manual (“CAM”). The CAM is approved by the Minister of Forests, Lands and Natural Resource Operations under section 105(1) of the Forest Act, and has the force of law.

The process for determining stumpage rates begins with the licensee sending an appraisal data submission to the Ministry of Forests, Lands and Natural Resource Operations (then the Ministry of Forests and Range)(the “Ministry”). In April 2007, Interfor sent an appraisal data submission for the CP to the Ministry. In the appraisal data submission, Interfor estimated that 34 percent of the timber volume would be harvested by cable yarding, and the rest would be harvested by ground-based methods. Cable yarding is generally more expensive than ground-based harvesting methods, and it generally causes less disturbance of moist soils. In May 2007, the Ministry used the appraisal data submission to determine that a stumpage rate of $17.59 per cubic metre applied to sawlogs harvested under the CP, effective April 30, 2007.

Subsequently, Ministry staff inspected the CP area, and observed that there had been less harvesting by cable yarding than indicated in the appraisal data submission. The Ministry determined that there had been a change in harvesting method, from cable yarding to a ground-based method, in excess of 15 percent of the total volume harvested, and therefore, a “changed circumstance” under section 3.3.1(1)(a) of the CAM had occurred and a reappraisal of the stumpage rate was required.

The Ministry requested that Interfor provide a reappraisal data submission reflecting the change in volume harvested by cable yarding. However, Interfor disputed that a “changed circumstance” had occurred, and re-sent its original appraisal data submission to the Ministry.

In May 2009, the Ministry conducted a reappraisal and determined that a stumpage rate of $19.96 per cubic metre applied to sawlogs harvested under the CP, effective May 1, 2007. The Ministry based the reappraisal on its estimate that four percent of the total volume had been harvested by cable yarding, representing a 30 percent change to the harvesting method of the total volume.

Interfor appealed the reappraisal to the Commission, and requested that the original stumpage rate be restored on the basis that: (1) there had been no “changed circumstance” under section 3.3.1(1)(a) of the CAM; and (2) even if there was a changed circumstance, section 3.3.1.2 of the CAM specified that the effective date of the reappraisal was May 1, 2007, and the original appraisal data submission should be used in a reappraisal because there was no change in the site conditions between April 30, 2007 (the effective date of the original stumpage determination) and May 1, 2007 (the effective date of the reappraisal).

The Government submitted that a changed circumstance had occurred because Interfor harvested at least 15 percent more volume by ground-based methods than was indicated in the original appraisal data submission.
 
In International Forest Products Ltd. v. Government of British Columbia (Decision No. 2009-FA-007, issued June 16, 2011), the Commission rescinded the reappraisal and ordered that the original stumpage rate should be restored. Specifically, the Commission considered the words in section 3.3.1(1)(a) of the CAM based on the principles of statutory interpretation. The Commission found that the words “plans” and “is planned” indicate an intention to do something, and are prospective or forward looking. The Commission considered whether there was evidence that Interfor’s plan or intentions with respect to harvesting methods had changed after it submitted the original data appraisal submission. The Commission held that Interfor’s staff estimated the percentage of harvesting by cable yarding based on their knowledge of the site and the typical weather conditions at the site when harvesting would occur. The Commission found that there was no evidence that, sometime after submitting the original data submission, Interfor planned or intended to use a different method to harvest at least fifteen percent of the total volume. Rather, the site conditions when harvesting occurred were unusually dry, and the contractor was able to do more ground-based harvesting than was originally planned. The Commission held that, if the Minister had intended that evidence of the actual volumes harvested by different methods should trigger a changed circumstance reappraisal, the Minister should have clearly said so in the CAM.

In addition, the Commission found that, if a reappraisal was required, section 3.3(2) of the CAM indicates that the reappraisal would look at the CP area as if the trees were still standing, as the area was on the effective date of the reappraisal, i.e. May 1, 2007. Given that there was no difference in the CP area conditions between April 30, 2007 and May 1, 2007, the original appraisal data submission would be used.

The Province appealed the Commission’s decision to the BC Supreme Court.

The Supreme Court first considered the standard of review that applied to the Commission’s decision. It held that the BC Court of Appeal’s decision in Western Forest Products Limited v. HMTQ, 2009 BCCA 354, [“Western Forest Products”] establishes that, where the Commission is interpreting the provisions of the CAM, the applicable standard of review is that of reasonableness, which means that the Court must defer to the Commission’s findings. In addition, the Supreme Court applied the test set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9. The Supreme Court found that the reasonableness standard applies in this case, because the Commission is a specialized tribunal that hears appeals under forestry legislation, it has expertise in interpreting and applying the CAM that the Court does not have, and the Commission was interpreting a law that is closely connected to the Commission’s function. The Court distinguished the Court’s previous decision in Pope & Talbot v. British Columbia, 2009 BCSC 1715, on the basis that the issue in that case was one of general importance to the legal system as a whole, and did not engage the Commission’s specialized expertise.

Next, the Supreme Court considered whether the Commission’s interpretations of sections 3.1.1(1)(a) and 3.3(2) of the CAM were reasonable. It concluded that the Commission’s interpretations were reasonable, because they fell within the range of possible acceptable outcomes, and were defensible in respect of the facts and law.

The appeal was dismissed, and the Commission’s decision was upheld.

Telus Mobility Inc. v. Minister of Forests and Range and Forest Appeals Commission

Decision date: March 29, 2012

Court: BCSC, Russell

Cite: 2012 BCSC 459

Telus Mobility Inc. (“Telus”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the British Columbia Supreme Court. The decision involved whether Telus was liable under the Wildfire Act for fire control costs incurred by the Ministry of Forests and Range (the “Ministry”), and Crown timber losses, arising from a forest fire.

Telus holds a licence of occupation on Crown land to “construct, maintain and use” a power line that runs along a Forest Service Road. The power line supplies electricity to a Telus communications tower. In July 2006, a dead tree or “snag” fell on the power line, causing a power failure. Telus’ contractor was alerted to the power failure and went to the site. As he drove to the site, he was stopped by Ministry officers because a forest fire had occurred at kilometre 4.4 of the power line. The fire was caused by the snag falling on the power line. The snag caused insulators to break, resulting in a conductor falling to the ground and igniting the fire, which grew to over 380 hectares in size.

A Forest Official with the Ministry determined that Telus had failed to maintain its utility line equipment as required under section 10(a) of the Wildfire Regulation (the “Regulation”). He ordered Telus to pay for the Ministry’s fire control costs, and the value of the Crown timber that was damaged or destroyed by the fire. Those costs totalled over $2 million. Telus appealed the Forest Official’s determination to the Commission.

At the parties’ request, the Commission heard only the matter of liability. Specifically, the Commission considered: (1) whether section 10(a) of the Regulation imposes on Telus the obligation to engage in site maintenance, such as the removal of snags from or near the power line right-of-way, so as to prevent their interference with the power line, thereby reducing the risk of wild fires; (2) whether the statutory defence of due diligence applied to Telus in the circumstances; and (3) whether the design and construction of the power line was defective. Telus argued that it did not contravene section 10(a) of the Regulation, because that section does not impose a duty with respect to vegetation maintenance; rather, it imposes a maintenance obligation with respect to “equipment, apparatus and material” only. Alternatively, Telus submitted that the statutory defence of due diligence applied in the circumstances.

In Telus Mobility Inc. v. Government of British Columbia (Decision No. 2009-WFA-002(a), issued October 4, 2010), the Commission confirmed the Forest Official’s finding that Telus contravened section 10(a) of the Regulation. In particular, the Commission held that section 10(a) of the Regulation deals with the risk of fire ignition on, or adjacent to, “the site”. Section 10(a) specifically refers to “the site” and not just the utility transmission equipment. The Commission found that, for ignition to occur, both the equipment and site combine to produce the appropriate conditions. The evidence established that trees or snags falling on overhead power lines are a known source of potential line failure and fire, and that fire prevention measures in utility transmission operations typically include a vegetation management program involving regular right-of-way inspections, brush removal, and identification and removal of snags that may fall onto power lines. The obligations on a transmission utility operator under section 10(a) of the Regulation include both preventive and reactive maintenance, and there was no evidence that Telus had a program of preventive vegetation management for the power line. On the other two issues, the Commission found that Telus failed to exercise due diligence, and the design and construction of the power line was not defective.

Telus appealed the Commission’s determination on the first issue to the Court.

The Court first considered the standard of review that should apply to the Commission’s decision. In determining the appropriate standard, the Court applied the test set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9. The Court found that the standard to be applied to decisions of the Commission when it is interpreting its own statute, or a related statute, is reasonableness, which means that the Court must defer to the Commission’s findings. The Court held that this standard applies even when the Commission is deciding a question of law, with the exception of questions of jurisdiction. In the present case, the reasonableness standard applies because the Commission is a specialized tribunal and was interpreting statutes that are closely connected to the Commission’s function, and with which it has particular familiarity.
 
Next, the Court considered whether the Commission erred in interpreting section 10(a) of the Regulation to include an obligation to maintain the site’s vegetation. The Court concluded that, when the Wildfire Act and the Regulation are read in their entirety, in their ordinary and grammatical sense and harmoniously with the scheme and object of the legislation, the Commission’s interpretation fell within a range of possible, acceptable outcomes, and the Commission justified its decision in a transparent and intelligible manner. The Court concluded that the Commission’s interpretation of section 10(a) to include an obligation to maintain the site’s vegetation was reasonable.

Finally, the Court considered whether the Commission erred in interpreting section 10(a) of the Regulation to include a vegetation maintenance obligation that Telus could not legally undertake. Telus argued that this was so, because it was required under the Forest and Range Practices Act and its licence of occupation to obtain permission before felling timber on Crown land. The Court held that the requirement to obtain permission before removing timber in a utility right-of-way does not result in an interpretation of the Regulation that would make compliance impossible. Compliance is possible, with permission. In the event of an emergency, Telus could remove a hazard without permission, and discuss the matter with the Crown afterwards. The defence of necessity would be open to Telus, should an issue arise after the fact. In cases where Telus is denied permission, it would have the defence of due diligence. The Court concluded, therefore, that the Commission’s interpretation of section 10(a) the Regulation in that regard was also reasonable.

Accordingly, the Court dismissed the appeal.

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.

 


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