Decision Date: April 10, 2000

Panel: Toby Vigod, Katherine Lewis, Lorraine Shore

Keywords: Forest Practices Code of B.C. Act – ss. 67, 117(4); principles involved in setting penalties.

This was an appeal by the Forest Practices Board of a Review Panel decision referring a determination back to the District Manager. The District Manager levied a penalty of $32,800 against Takla for a contravention of section 67(2) of the Code. The Review Panel found that subsections 67(1)(e) and (f) were a more appropriate basis for a finding of a contravention and recommended a penalty of $8,000. The Appellant sought an order from the Commission referring the matter back to the District Manager, with directions regarding the proper principles to be applied in setting the penalty.

The Commission found that either section 67(1) or section 67(2) could be used in this case and that the District Manager has the discretion to decide which section is appropriate. With respect to the penalty, the Commission considered section 117(4) of the Code, and found that while senior officials must “consider” or “take into account” economic benefit in assessing penalties, there is no obligation to remove all economic benefit derived from the contravention at issue. However, the Commission stated that, in most cases, given the purposes of the Code and administrative penalties, it will be appropriate to remove the entire economic benefit

The Commission agreed with both parties that, in this case, the penalty should have removed the economic benefit that Takla derived from the contravention. Further, the Commission agreed that the Review Panel did not properly consider the factors listed in section 117(4) of the Code in assessing the penalty. Specifically, the Commission found no indication that the Review Panel had contemplated the environmental impact of the contravention.

Accordingly, the Commission rescinded the directions of the Review Panel, and referred the matter back to the District Manager with directions to: determine whether a violation of section 67(1) or 67(2) was more appropriate in the circumstances; assess a penalty which removes the economic benefit that Takla derived from the contravention; and, consider all of the relevant factors in section 117(4)(b), including the ecological impact of the contravention, in determining the appropriate penalty. The appeal was allowed, in part.