Discretionary Decisions

To ensure that the Board’s procedures are as fair as possible, it is important that participants in a complaint are aware of criteria and standards that the Board uses to evaluate discretionary decisions and fairness of decision-making processes.

I. Reviewing A Decision-Maker’s Exercise of Statutory Authority

Sometimes a complaint concerns the exercise of statutory discretion under the Forest Practices Code. A discretionary decision may comply with the Code in the sense that the decision-maker had the authority to make the decision in question. Even so, the Board will comment on the exercise of statutory discretion. The Board believes it must do so in order to properly fulfil its role, given the amount of discretion decision-makers have under the Code.

The standard the Board uses in evaluating discretionary decisions is not whether, in the Board’s opinion, the decision was the best decision. Rather, the standard is:

Was the decision consistent with sound forest practices, did it achieve the intent of the Forest Practices Code and was it based on an adequate assessment of available information?

Factors that the Board may take into account in applying this standard are:

• Was the decision a feasible one?
• Was the decision achievable?
• Was the decision consistent with other decisions made in similar circumstances? If not, was this inconsistency justified?
• Did the decision have an effective time frame?
• Was the decision made in circumstances where sufficient information was available?
• Where a decision does not meet the standard but is consistent with other decisions in similar circumstances, the
• Board may consider whether there is a systemic issue, such as a need for policy direction from government.
• If the Board concludes that a decision complies with the Code but is not consistent with sound forest practices, the Board may consider whether there is a problem with the Code.

The Board uses a range of words to characterize discretionary decisions, including “reasonable” and “unreasonable”. The Board will use the words “reasonable” and “unreasonable” consistent with common usage or dictionary definitions and will not normally be restricted by definitions used in the courts.

II. Reviewing Fairness of Process

Another area that the Board will examine is the fairness of the decision-making process. Fair process requires consideration of the potential impact of a decision on those directly affected and on the general public, as well as the need for effective and efficient administration.

In examining each decision for fairness, the Board will use the checklist set out below. This checklist is not intended to exclude other considerations which may apply to a particular complaint.

• What was the potential impact of the decision?
• On those directly affected?
• On the general public?
• Did the decision-making process provide adequate participation for those interested or affected?
• Were interested parties identified and informed?
• Adequate notice?
• Sufficient Information?
• Adequate opportunity to review input/comment/disagreement?
• Was the input considered in an appropriate manner?
• Was the decision-making process clear to participants?
• Was the decision adequately explained?
• Should the decision have been recorded in writing? If so, was it?
• Was the decision made within an appropriate time?
• Was the decision-maker free from actual and perceived bias and conflict of interest?
• Were there practical constraints on the decision-maker that should be taken into account?
• If a different process had been followed, what impact would it have had on the efficiency and effectiveness of administration?
• What was the actual impact of the decision on those directly affected and on the general public?