Decision Date: March 7, 2000
Panel: David Ormerod, James Hackett, Lorraine Shore
Keywords: Forest Practices Code of B.C. Act – ss. 123, 129(2); Forest Road Regulation – s. 13(1)(c)(vi); Stop Work Order.
This was an appeal by the Forest Practices Board (“FPB”) of a review decision which rescinded a Stop Work Order (“SWO”) issued to Gloria O’Brien by a Ministry of Forests Official. The SWO was issued to limit environmental damage caused by a perceived contravention of the terms of a Timber Sale Licence (“TSL”), a road permit, and section 13(1)(c)(vi) of the Forest Road Regulation. The perceived contraventions were related to the fact that sand from a reactivated road had slumped into fish-rearing streams. The Appellant requested that the SWO be referred back to the Reviewer for reconsideration.
The Appellant argued that the Reviewer did not consider all of the relevant evidence, and did not apply the correct legal test in rescinding the SWO. The Commission found that if the photographs taken during the first inspection of the site had been before the Reviewer his decision might have been different. The Commission also found that an engineering inspection should not have been dismissed by the Reviewer simply because it was obtained after the SWO was issued; it should have been considered to the extent that it assisted in determining the conditions present at the time the SWO was issued. Further, the Commission found that a “fisheries window” restricting the time for road construction was a major factor in allowing harvesting operations in the area. However, the Reviewer did not know about it because he was provided with an inaccurate copy of the road permit, which likely affected his finding that there was no contravention of the TSL. The Commission also found that the Reviewer should have enquired as to the conditions of the bid proposal, TSL and road permit, to determine whether the road structure met the approved design.
The Commission found that it was unclear, on a balance of probabilities, whether the Reviewer applied the correct legal test in determining whether the SWO was justified. The correct legal test is whether it was reasonable for the official to believe that a contravention existed; the test is not whether a contravention in fact occurred. The Commission recommended that in the future, the Reviewer should set out the appropriate test.
The Commission reversed the Reviewer’s rescission of the SWO. The Appeal was allowed.