Decision Date: July 18, 2000

Panel: Lorraine Shore, Bruce Devitt, James Hackett

Keywords: Forest Act – ss. 65(1)(b), 138(1), 138.1(2), 139; Ministry of Forests Policy on Trespass – s. 12.63; timber cutting and removal.

This was an appeal brought by Calvin Carter of the District Manager’s determination, as confirmed by the Acting Regional Manager in a review decision, that Mr. Carter had contravened sections 138(1), 138.1(2) and 65(1)(b) of the Forest Act, and imposing a penalty of $34,761.62 for the contravention of section 138(1). Mr. Carter appealed on the issue of penalty only.

Mr. Carter logged on property owned by Ms. Cushway. Mr. Carter cut and removed timber from Crown land as the result of Mr. Brekkas, who was then Ms. Cushway’s common-law husband, incorrectly identifying the boundary of Ms. Cushway’s property. It was the view of the Commission that the $7,349.31 profit received by Mr. Carter as a result of the contravention should be removed. The Commission found this penalty appropriate given Mr. Carter had no past record of trespass violations and was co-operative in the investigation. The Commission noted that Mr. Carter should have exercised more care in determining the boundaries, but the reliance on Mr. Brekkas, someone he considered “family”, was understandable in the situation. The appeal was allowed.