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.