Decision Date: March 24, 1998
Panel: Toby Vigod, Rob Kyle, Deborah Todd
Keywords: Forest Practices Code of British Columbia Act – s. 118; Forest Road Regulation – s. 17(1)(c); degree of proof needed to issue a Remediation Order; approved bridge design.
Canadian Forest Products Ltd. (“Canfor”) appealed the decision of a Review Panel varying a Remediation Order which stated that Canfor had contravened the Forest Road Regulation by (1) placing a gravel deck on the Salmon River bridge and, (2) allowing the deposition of gravel and sand from the bridge surface into the Salmon River. The Panel rescinded the first contravention but upheld the second. The Appellant appealed the Remediation Order on the grounds that the District Manager failed to make a prior determination of contravention as required under section 118 of the Code, failed to give Canfor an opportunity to be heard before issuing the Order, and by finding that Canfor contravened the Regulation.
The Commission found that the determination of contravention in support of the Remediation Order was communicated in the Order itself. It held that this was satisfactory as section 118 does not require a determination to be communicated prior to the issuance of the Order, nor in a separate document. It also found that the District Manager has discretion to suspend or set aside a person’s opportunity to be heard in appropriate circumstances, such as an emergency. However, on the facts, there was no urgency or emergency present. Therefore, the District Manager breached the principles of procedural fairness by issuing the Order without first giving the Appellant an opportunity to be heard. Finally, the Commission held that the findings of contravention were premised on the assumption that the gravel running surface was placed illegally on the bridge deck, which was not the case. The gravel surface was part of the bridge design previously approved by the Ministry of Forests. There was no evidence that the maintenance efforts of Canfor were inadequate or that gravel fell into the river as a result of poor maintenance. Thus, the government, and the Commission, had insufficient evidence to find a contravention of section 17(1)(c) of the Regulation and for issuing the Order. The appeal was allowed.