Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-23
This appeal raised the issue of double jeopardy and whether the Kienapple principle against multiple convictions for the same act in criminal law also applies to administrative contraventions. The Board joined the appeal to argue that the approach to multiple contraventions and penalties for the same act or omission should be consistent with previous FAC decisions, two of which include International Forest Products Limited (Appeal No. 96/02, discussed below); and Hayes Forest Services Limited (Appeal No. 97-FOR-07, discussed below). The FAC agreed. The majority decision affirmed the contravention findings but reduced the penalty. The minority would not have reduced the penalty.
Appeal allowed in part.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/1997for23.pdf
Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-22
Slocan appealed contravention and penalty determinations on several grounds, including that they offended a criminal law rule against multiple convictions for the same act. The Board joined the appeal to argue that the FAC should follow its decision in two previous appeals, namely, that the rule is not applicable to administrative contraventions under the legislative scheme encompassing the Code and its regulations. This scheme encompasses prohibitions against particular acts and/or omissions that sometimes overlap. The FAC agreed.
Appeal allowed in part, with dissenting opinion.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/1997for22.pdf
Third Party: Forest Practices Board 1997-FOR-13 The appeal issue was in regard to the sufficiency of evidence and the standard of proof required to find a contravention of unauthorized harvesting under section 96 of the Code. The Board argued, and the FAC accepted, that the correct standard of proof to be applied to administrative penalties under the Code is the civil standard of proof, consistent with the FAC’s decisions in previous appeals.
Appeal dismissed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/1997for13.pdf
Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-19
The appeal issue was whether landowners, who made extensive efforts to determine the legal status of a road through their property through inquiries with government agencies, contravened the unauthorized harvesting provision of the Code, and if so, whether the defence of officially induced error was available to them. The Board took no position on whether a contravention occurred in this case but submitted that, if a contravention was found, the penalty assessed may not adequately take into account the efforts made by the Hengstlers to avoid the contravention nor the extent to which the actions of government officials contributed to the contravention. The FAC found that the defence was available, and applicable in this case.
Appeal allowed in part.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/1997for19.pdf
Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-16
Canfor appealed a contravention determination that it had felled trees and operated machinery across a stream. The appeal focused on whether the watercourse met the Code’s definition of a “stream.” The FAC found that an alluvial sediment bed does not have to be continuous throughout the course of a stream, and upheld the contravention and administrative penalty.
Appeal dismissed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/1997for16.pdf
Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-30
The appeal issues were whether a remediation order concerning sediment entering the Salmon River from a bridge was issued prematurely, i.e. prior to determining that there was a contravention and providing Canfor an opportunity to be heard, raising both jurisdictional and procedural fairness concerns. The Board submitted that situations can and do arise where the need for a Remediation Order is “time-sensitive” requiring remediation of a problem to take place as soon as practically possible, as for example when an unstable slope or road needs to be stabilized so as to prevent an imminent slide and incidental damage to forest and other resources. The Board also submitted that in true emergency situations it may be necessary to issue the order without first providing any opportunity to be heard. The FAC found that there was insufficient evidence to warrant a finding that Canfor had contravened the Forest Road Regulation.
Appeal allowed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/1997for30.pdf
Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-31
This was an appeal of a contravention determination and administrative penalty determination regarding unauthorized harvesting. The Board participated in the appeal solely on the issue of due diligence, arguing that it was not available as a defence to an administrative penalty for a contravention of section 96 of the Code. The FAC agreed and stated, consistent with previous appeal decisions, that due diligence to avoid a contravention is not a defence, but is a relevant consideration when determining the amount of penalty. It confirmed the contravention, but reduced the penalty amount.
Appeal allowed in part.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/1997for31.pdf
Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-02
The appeal issue raised the issue of whether the defence of due diligence is available for administrative contravention determinations and penalties under the Code. The Board that it was not, and the FAC agreed, upholding a previous decision. It found that the degree of diligence exercised to avoid the contravention is relevant when determining the quantum of penalty.
Appeal dismissed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/1997for02.pdf
Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-17
Canfor appealed a contravention determination and administrative penalty of $36,000 relating to unauthorized harvesting of no harvest zones within a cutblock. The Board did not take a position on the amount of penalty, but submitted that any reduction should be contingent upon the company establishing that the cutting of the original reserve was an innocent and unintentional mistake. The penalty should be high enough to remove all economic benefits, to discipline the transgressors and to deter reserve violations. The penalty also should take into account all ecological values that had been compromised by changing the reserve area and should reflect all other losses to the Crown. Credit for the establishment of compensatory reserves should be greater if they are pre-approved by government officials, and reserves should be discouraged in areas that are simply convenient and beneficial for the contractor.
The FAC decided that a penalty amount for deterrence was not necessary because the unlawful harvesting was offset by the provision of retention patches and the prompt and cooperative response extended by Canfor. The FAC re-determined the penalty amount based on compensation to the Crown in the amount of $37,735.
Appeal dismissed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/1997for17.pdf
Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-07 and 1997-FOR-10
This appeal involved cross-stream yarding of logs by Hayes, a contractor for TimberWest contrary to a logging plan. Both Hayes and TimberWest appealed, and the FAC addressed the appeals in two separate decisions.
Hayes Appeal:
The practice of yarding logs across a stream was prohibited by the Timber Harvesting Practices Regulation, unless expressly authorized by a logging plan. In this case, the logging plan did not allow cross-stream yarding. Failure to carry out harvesting in accordance with a logging plan was also a contravention under the Code.
The Board took the position that while persons can be found to be in contravention of two or more sections of the Code for a single action, they should not be found to be in contravention of two or more sections of the Code for a single action where there is a single legal prohibition. The Board also argued that when determining the penalty amount, previous contraventions are not “effective” until a person has exhausted his/her rights of review or appeal. In this case, two determinations of contraventions of the Code were made by a senior official, but were later rescinded by a Review Panel. The Board argued that a rescinded contravention is not a “previous contravention.”
The FAC found that Hayes was in contravention of section 67(1) of the Code for yarding in the wrong direction and cross-stream yarding contrary to the provisions of the logging plan and section 8(1) of the THPR for cross-stream yarding contrary to the logging plan. The FAC reduced the penalty due to improper considerations by the Review Panel, and assessed one penalty of $4,000 for these contraventions.
Appeal allowed in part.
FAC Decision (Hayes): http://www.fac.gov.bc.ca/forestPracCode/1997for07.pdf
TimberWest Appeal:
Licensees are vicariously liable for the actions of their contractors under section 117 of the Code: TimberWest argued that it was entitled to the defence of due diligence because of its instructions to Hayes. The Board argued that the FAC should uphold its previous rulings that due diligence is not available as a defence to administrative contravention determinations. The FAC agreed and dismissed the appeal. No penalty was assessed against TimberWest.
Appeal dismissed.
FAC Decision (TimberWest): http://www.fac.gov.bc.ca/forestPracCode/1997for10.pdf
