Decision Date: January 12, 2007

Panel: James Hackett

Keywords: Forest Practices Code of British Columbia Act – ss. 67(1)(d), (e), 96(1); Forest and Range Practices Act – ss. 71, 72; quantum of penalty, defence of mistake of fact; defence of due diligence

Randolph Carson O’Brien appealed a determination made by the Acting District Manager, Queen Charlotte Islands Forest District, that Mr. O’Brien had contravened sections 67(1) and 96(1) of the Forest Practices Code of British Columbia Act by harvesting Crown timber that had been identified in his silviculture prescription as “reserved”.  The District Manager levied a penalty of $42,000 for the contravention of section 96(1), and no penalty for the contravention of section 67(1).

Mr. O’Brien acknowledged that the contraventions occurred, but he argued that the contraventions were not entirely his fault because the cut block layout was confusing and the maps provided by the Ministry were unclear.  He also argued that the penalty was excessive.

The Government acknowledged that the penalty should be adjusted to take into account more accurate data regarding the amount of timber that was unlawfully harvested, and new evidence regarding Mr. O’Brien’s operating costs.

The Commission found that Mr. O’Brien failed to establish that any of the defences provided in section 72 of the Forest and Range Practices Act applied in this case.  Mr. O’Brien made no submissions regarding the defence of officially induced error.  Regarding the defence of mistake of fact, the Commission noted that Mr. O’Brien was an experienced licensee, and that the riparian management zones in which the timber was to be reserved were identified in the silviculture prescription, were discussed at a pre-work meeting, and were clearly set out in maps that were available to Mr. O’Brien.  Regarding the defence of due diligence, the Commission found that MR. O’Brien did not take reasonable care to prevent the contraventions.  Specifically, he did not walk all of the boundaries with his falling contractor, and did not consult forest officials to resolve any uncertainty about the reserve area boundaries.

Regarding the penalty, the Commission varied the penalty to reflect its findings that:

• approximately $5,017 should be levied to compensate the Crown for stumpage;
• the environmental damage that occurred was minor, contrary to the District Manager’s finding that $5,000 should be levied as a deterrent due to for environmental damage;
• the District Manager appropriately levied $500 to compensate the Crown for silviculture costs incurred in re-establishing the areas that were unlawfully harvested; and
• Mr. O’Brien’s operating costs should have been deducted when calculating the amount of economic benefit he received from the contraventions, and if those costs are included, his profit was approximately $3,948.

Accordingly, the District Manager’s determination was varied by reducing the penalty to $9,465.  The appeal was allowed.