Decision Date: April 12, 2005
Panel: Cindy Derkaz
Keywords: Forest Practices Code of British Columbia Act – ss. 96(1), 96(2), 119; Administrative Remedies Regulation – s. 4(1); Forest and Range Practices Act – s. 84(3); procedural fairness; standard of proof; penalties; costs
Marilyn Abram appealed a decision of the District Manager that she contravened sections 96(1) and 96(2) of the Forest Practices Code of British Columbia Act (the “Code”), by cutting and removing timber, without permission, from Crown land. A penalty of $3,828.00 was imposed pursuant to section 119 of the Code. An administrative review panel upheld the District Manager’s decision. Ms. Abram sought an order by the Commission to rescind the review decision on the grounds that there was undue delay in the process that led to the District Manager’s determination, inadequate notice of the hearing before the District Manager, insufficient evidence against her, and that the standard of proof should have been proof beyond a reasonable doubt rather than on the balance of probabilities. She also sought an order of costs.
The Commission found that Ms. Abram provided no evidence that she suffered any prejudice as a result of any delay in the administrative process. Further, the 18-month delay in being notified of the alleged contravention did not constitute procedural unfairness or a denial of natural justice. The Commission held that Ms. Abram failed to establish a legal basis for her claim of undue delay.
On the issue of proper notice, the Commission found that the District Manager’s February 26, 2003 letter satisfied the common law requirements for proper notice, and Ms. Abram had access to sufficient information to prepare and present her case. The Commission accordingly held there was no legal or factual basis to conclude that there was inadequate notice.
The Commission noted that it has consistently held that the correct standard of proof for administrative penalties under the Code is the civil standard of proof on a balance of probabilities. The Commission also found that the special nature of the penalties under section 119 of the Code must be considered when analyzing the question of whether the standard of proof for administrative remedies should be beyond a reasonable doubt. In that regard, the Commission held that the primary purpose of penalties under section 119 is to compensate the Crown for loss or damage to public forest resources, and to deter unauthorized harvesting, rather than punishing wrongdoers. The Commission found that this purpose is different from the purpose of the penalties involved in a number of judicial decisions, cited by Ms. Abram, in which British Columbia courts were divided over the appropriate standard of proof for administrative penalties under the Liquor Control and Licensing Act. The Commission also agreed with the policy arguments of the Forest Practices Board that if the standard of proof for administrative remedies in the forestry context were elevated to beyond a reasonable doubt, the enforcement of forest legislation would be less effective. For all of those reasons, the Commission held that the appropriate standard of proof is on a balance of probabilities.
The Commission agreed with the Government that the evidence is compelling and supports the finding, on the balance of probabilities, that Ms. Abram contravened sections 96(1) and 96(2) of the Code. The Commission found no special circumstances under section 84(3) of the Forest and Range Practices Act that warranted an order of costs for either party. The Commission upheld the review panel decision.
Accordingly, the appeal was dismissed. The request for costs was denied.