Judicial Review Decisions

  • 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 and the Forest Appeals Commission (Forest Practices Board, Intervenor)

    November 8, 2011
    File Numbers:
    BCCA 446

    Decision Date: November 8, 2011

    Court: BCCA; Justices Donald, D. Smith and Bennett

    Cite: 2011 BCCA 446

    Ronald Edward Hegel and 449970 B.C. Ltd. (the “Appellants”) appealed a decision of the BC Supreme Court that had dismissed an appeal from decision of Forest Appeals Commission (the “Commission”).  The Supreme Court had upheld the Commission’s decision in Ronald Edward Hegel and 449970 B.C. Ltd. v. Government of British Columbia (Decision No. 2005-FOR-009(a), October 12, 2007).

    The Appellants’ appeal to the Commission was against a determination issued by the District Manager, Ministry of Forests and Range.  The District Manager found that the Appellants had contravened sections 96(1) and 97(2) of the Forest Practices Code of British Columbia Act, 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 against the Appellants.  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’ property, including modern and historical surveying reports.  The Commission concluded that the Appellants had failed to correctly locate the northern boundary of the property, and the defences of due diligence and mistake of fact did not apply in the circumstances.  The Commission confirmed the District Manager’s determination, except for making a small adjustment to the penalty amount.

    The Appellants appealed the Commission’s decision to the BC Supreme Court, based on four grounds for appeal.  The Supreme Court concluded that: (1) 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; (2) although the Commission had misstated Mr. Hegel’s evidence as to the starting point of his investigation of the property boundary, the Commission’s decision would not and should not have been any different; (3) the Commission did not misapprehend the evidence concerning the Appellants’ due diligence in trying to determine the location of the boundary; and (4) the Commission did not err in law in its approach to the defence of mistake of fact.  Accordingly, the Supreme 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 denied the application for leave to appeal, on the basis that the appeal raised questions of mixed fact and law, and therefore, was not properly before the BC Supreme Court (Hegel v. British Columbia (Ministry of Forests and Forest Appeals Commission), 2009 BCCA 527).

    The Appellants applied to vary the Chambers Judge’s order denying leave to appeal.  A panel of three Court of Appeal judges granted leave to appeal on two questions of law: (1) was he entitled to rely on dimensions in the original Crown grant; and (2) did the Commission treat due diligence and mistake of fact as equivalent defences? (Hegel v. British Columbia (Ministry of Forests and Forest Appeals Commission), 2010 BCCA 289).

    On the merits of the appeal, the Court of Appeal found that sections 1 and 2 of the Land Survey Act provide that the survey markers (monuments) establish the boundaries of land, not what is described in the title documents.  Consequently, Mr. Hegel was not entitled to rely on dimensions in the original Crown grant.  In addition, the Court held that the Commission considered the defences of due diligence and mistake of fact separately, and nothing in the Commission’s decision indicates that the Commission treated the defences as equivalent.  Accordingly, the appeal was dismissed, and the Commission’s decision was upheld.