Decision Date: April 1, 2005
Panel: Alan Andison
Keywords: Forest Practices Code of British Columbia Act – ss. 96, 117, 119; Forest and Range Practices Act – ss. 71 and 72; officially induced error; deterrent penalty.
Dave Tremblay appealed five separate determinations of the District Manager that he cut or removed Crown timber without authority, contrary to section 96 of the Forest Practices Code of British Columbia Act. Mr. Tremblay also appealed four separate deterrent penalties totalling $20,326 levied by the District Manager, in Appeal Nos. 2004-FOR-008/009/010/011, for the contraventions pursuant to section 71 of the Forest and Range Practices Act. Mr. Tremblay asked either that the contraventions be excused on the grounds of officially induced error, or that the penalties assessed be rescinded or reduced on the grounds that they were excessive in the circumstances. Mr. Tremblay also asked that the Commission order the return or compensation of logs that the Crown had seized and sold in relation to Appeal No. 2004-FOR-007.
There was no dispute that Mr. Tremblay and/or his employees harvested the timber as alleged. The Commission found, on a balance of probabilities, that Mr. Tremblay had not received verbal approval from a Ministry of Forests employee to harvest the timber as alleged. The Commission found that the misunderstandings between Mr. Tremblay and the Ministry of Forests employee were insufficient to allow harvesting that requires written approval. Thus, Mr. Tremblay did not establish that the unauthorized harvesting resulted in an officially induced error. Accordingly, the Commission upheld all five findings of contravention.
For the penalties levied in Appeal Nos. 2004-FOR-009/011, the Commission found that Mr. Tremblay’s belief, that approvals were given, mitigated the seriousness of the contravention and the level of deterrence necessary. The Commission held that the deterrent penalties in these cases were unnecessary, given that the contraventions were found by the District Manager not to be deliberate. Therefore, the Commission ordered that the penalties be reduced to zero.
For the penalties levied in Appeal Nos. 2004-FOR-008/010, Mr. Tremblay accepted the responsibility for the contraventions. The Commission found that Mr. Tremblay, as an experienced faller, had the map reading skills and technical knowledge to ensure that his work, and his employee’s work, fell within the proper boundaries of the licence. The Commission held that the deterrent penalties were warranted to ensure that Mr. Tremblay properly supervises his employee’s and contractors in the future. Therefore, the Commission confirmed the penalties assessed by the District Manager.
The Commission found that it did not have the jurisdiction to return logs seized and sold, or to order compensation for them, as requested by Mr. Tremblay in relation to Appeal No. 2004-FOR-007. The Commission found that the seizure and sale of logs by the Crown was not part of the determination of the contravention at issue in the appeal.
Accordingly, Appeal Nos. 2004-FOR-007/008/010 were dismissed, and Appeal Nos. 2004-FOR-009/011 were allowed in part.