Judicial Review Decisions

  • Ronald Edward Hegel and 449970 B.C. Ltd. v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Forests, and The Forest Appeals Commission

    June 10, 2010
    File Numbers:
    BCCA 289

    Decision Date: June 10, 2010 

    Court: BCCA; Justices Newbury, Huddart, and Saunders 

    Cite: 2010 BCCA 289

    Ronald Edward Hegel and 449970 B.C. Ltd. (the “Appellants”) sought a review of a decision by a Chambers Judge in the BC Court of Appeal denying leave to appeal a decision of the BC Supreme Court.  The BC Supreme Court had dismissed an appeal from decision of Forest Appeals Commission (the “Commission”) which found that the Appellants had harvested Crown timber without authority contrary to the Forest Practices Code of British Columbia Act (the “Code”).

    The decision at stake was the Commission’s decision in Ronald Edward Hegel and 449970 B.C. Ltd. v. Government of British ColumbiaDecision No. 2005-FOR-009(a), issued on October 12, 2007.  The Appellants had appealed a determination by the District Manager, Ministry of Forests and Range, that they had contravened sections 96(1) and 97(2) of the Code by failing to ascertain the boundaries of their private property and harvesting Crown timber without authority.  The District Manager levied administrative penalties totalling $132,897.40.  The Appellants appealed to the Commission on the grounds that they had exercised due diligence in attempting to locate the property boundaries, that they were under a mistake of fact regarding the boundaries, that their actions resulted from an officially induced error, and that the penalty was excessive.  The Commission considered a great deal of evidence regarding the boundaries of the Appellants’ private property, including modern and historical surveying reports, and confirmed the District Manager’s determination, except for making a minor adjustment to the penalty amount.

    The Appellants appealed the Commission’s decision to the BC Supreme Court.  The Appellants raised four grounds for appeal.  With respect to the first ground of appeal, the trial judge concluded that the Commission made no error of law in reaching its conclusion about the location of the northern boundary of the Appellants’ property and in concluding that the alleged area of unlawful harvesting was Crown land.  As to the second ground of appeal, the judge found that the Commission had misstated Mr. Hegel’s evidence as to the starting point of his investigation of the property boundary.  However, the judge concluded that the Commission’s decision would not and should not have been any different.  Regarding the third ground of appeal, the judge found that the Commission did not misapprehend the evidence concerning the Appellants’ exercise of due diligence in their efforts to determine the location of the boundary.  Lastly, the judge found that the Commission did not err in law in its approach to the defence of mistake of fact.  Accordingly, the Court dismissed the appeal (Ronald Edward Hegel and 449970 B.C. Ltd. v. Province of British Columbia (Ministry of Forests and Range), 2009 BCSC 863).

    The Appellants sought leave to appeal to the BC Court of Appeal.  A Chambers Judge for the Court of Appeal held that the legislation enabling appeals of the Commission’s decisions to the BC Supreme Court only permits appeals on questions of pure law and jurisdiction.  The Chambers Judge considered the grounds for appeal before the BC Supreme Court, and held that they did not raise questions of law; rather, they raised questions of mixed fact and law.  The Chambers Judge also held the right of appeal on questions of law does not include a right of appeal on questions of mixed fact and law.  Consequently, the Chambers Judge concluded that the appeal was not properly before the BC Supreme Court.  Accordingly, the application for leave to appeal was dismissed (Hegel v. British Columbia (Ministry of Forests and Forest Appeals Commission), 2009 BCCA 527).

    The Appellants then applied to vary the Chambers Judge’s order denying leave to appeal.  Sitting as a panel of three judges, the Court of Appeal held that two issues raised by the Appellants were questions of law; namely, whether the measurement descriptions of the original survey of the land must be given effect, and the legal characteristics of the defences of due diligence and mistake of fact as set out in section 72 of the Forest and Range Practices Act.  The Court also held that these questions were important to the community and had sufficient merit to warrant the granting of leave to appeal.  Accordingly, the Court allowed the application and granted leave to appeal.