Decision Date: September 4, 2007

Panel: David Ormerod

Keywords: Forest Practices Code of British Columbia Act – s. 67(1); Forest and Range Practices Act – s. 72(a); due diligence; contractor

In May 2005, the District Manager of the Arrow Boundary Forest District determined that Pope and Talbot Ltd. (“P&T”) had contravened section 67(1) of the Forest Practices Code of British Columbia Act by cutting trees contrary to the silviculture prescription. The District Manager also found that the harvesting contractor and the falling sub-contractor had contravened section 67(1). A total penalty of $1,000, apportioned 60 percent to P&T and 40 percent to the harvesting contractor, was levied. P&T appealed the determination on the basis that it was duly diligent and that the error was entirely the responsibility of the harvesting contractor and his sub-contractor, neither of whom disputed the determinations made against them.

In considering whether P&T was duly diligent in the circumstances of this case, the Commission applied the test it set out in Weyerhaeuser v. Government of British Columbia (Decision No. 2004-FOR-005(b), January 17, 2006). First, the Commission found the contravention to be reasonably foreseeable. In this case, the risk that harvestings may deviate from operational plans was higher than usual because the cutblock had an extremely complicated silviculture prescription. The Commission then considered the steps P&T took to prevent the contravention from occurring. The Commission found that the act took place without P&T’s direction or approval, but that the collective efforts of P&T through its Environmental Management System, the layout of the harvesting area and the supervision of the contractor were deficient. P&T gave too much discretion to its logging supervisory staff, the contractor and the sub-contractor in deciding how to implement the leave tree requirements of the silviculture prescription.  In particular, P&T gave the contractor the responsibility to decide on the limits of the guy-line clearance areas and to select leave trees beyond these limits, without the benefit of clearance area boundary layout or leave tree markings. Therefore, the Commission found that the defence of due diligence was not established in this case.

As a result, the Commission confirmed the determination of the District Manager and dismissed the appeal.