Decision Date: August 9, 2007

Panel: James S. Hackett

Keywords: Timber Harvesting and Silviculture Practices Regulation – s. 10, s. 14; Forest and Range Practices Act – s. 72(a), s. 71(2)(a)(ii); stream crossings; due diligence; hearing de novo.

In 2004, A & A Fibre Ltd. (“A&A Fibre”) was awarded a Timber Sale Licence in an area near Hotham Sound in the Sunshine Coast Forest District, and retained a contractor to carry out the harvesting operation. A stream crossing location was designated in the Harvest Plan to restrict machine crossings to those portions of the stream that were not classified as fish-bearing. However, the contractor crossed at the wrong location and, as a result, slash that was capable of damaging fish habitat was deposited into the stream.

In 2005, the District Manager, Sunshine Coast Forest District (the “District Manager”) determined that A&A Fibre had contravened sections 10(d) and 14(2) of the Timber Harvesting and Silviculture Practices Regulation (the “Regulation”) as a result of multiple machine crossings of a fish-bearing stream. A penalty of $500 was imposed. A&A Fibre appealed the determination on the grounds that it exercised due diligence to prevent these contraventions. A&A Fibre asked that the District Manager’s determinations be rescinded.

The Commission first considered the Government’s request for a hearing on the record. The request was denied. The Commission took account of the fact that A&A Fibre did not want the Commission to simply review the record for errors and did not prepare its case on that basis. The Commission determined that the evidence should be heard afresh in the context of a hearing de novo.

The Commission then considered whether A&A Fibre had established a defence of due diligence. The Commission adopted the test for the statutory defence of due diligence that was set out in its previous decision in Weyerhaeuser Company Ltd. v. Government of British Columbia (Forest Practices Board, Third Party) (Decision No. 2004-FOR-005(b), January 17, 2006).

The first question set out in the test is whether the contravention was reasonably foreseeable. The Commission found that it was reasonably foreseeable that there could be issues with the stream crossing location.

The second question focuses on the actions taken by the party invoking due diligence to prevent the reasonably foreseeable contravention. When a licensee engages a contractor whose acts or omissions result in a contravention, the licensee must demonstrate that (a) the act took place without the licensee’s direction or approval, and (b) the licensee exercised all reasonable care by taking all reasonable steps to ensure that the contravention did not occur. The Commission found that A&A Fibre did not know that the crossing took place within the fish bearing portion of the stream. In regard to the care exercised by the licensee, the Commission noted that the standard to be applied is that of a “reasonable licensee in the particular circumstances of the particular case”, as informed by the following factors: the gravity of the potential harm, the likelihood of the potential harm, the available alternatives to protect against the harm, the skill required, and the extent to which the accused could control the causal elements of the offence.

The Commission found that the gravity of the potential harm was quite high in this case, as crossing a stream and depositing slash could result in serious damage to fish and fish habitat. The likelihood of potential harm was, however, relatively low, as A&A Fibre had hired a competent harvesting contractor and attended the site regularly. The Commission agreed with the Government that, as the licensee, A&A Fibre was responsible for the oversight and supervision of its contractors. In this case, A&A Fibre should have paid more attention to the potential harm that may arise from machine crossings of a fish stream. Having a work review system in place to check stream crossings locations was an available alternative to protect against the potential harm of crossing a stream in the wrong location and would have been reasonable in the circumstances. However, there was no indication that A&A Fibre had such a system in place. Therefore, the Commission found that A&A Fibre’s actions were not adequate to establish a defence of due diligence in the circumstances.

Finally, the Commission considered whether the penalty was appropriate in the circumstances. The Commission found that the Notice of Determination was unnecessary in the circumstances. A simple warning would have been sufficient, given that the infraction was trivial, in that the crossings occurred only a few metres above the designated location, and there were no observable impacts on fish habitat. Moreover, as a result of the determination, the parties incurred significant costs, which outweighed the environmental costs of the infraction. In light of these findings, the Commission applied section 71(2)(a)(ii) of the Forest and Range Practices Act to find that it was “not in the public interest to levy an administrative penalty”.

Therefore, the Commission confirmed the contravention but rescinded the penalty.