Decision Date: January 22, 2007

Panel: David Ormerod

Keywords: Forest Practices Code of British Columbia Act – s. 96(1); Forest and Range Practices Act – s. 71(3); vicarious liability; small scale salvage licence; quantum of penalty

Terri Basso appealed three determinations made by the District Manager, North Coast Forest District, that Ms. Basso had contravened section 96(1) of the Forest Practices Code of British Columbia Act (the “Code”) by cutting live green standing Crown timber in the areas covered by three small scale salvage Timber Sale Licences (“TSLs”) without authority.  The District Manager levied administrative penalties totalling $5,710 against Ms. Basso.

Ms. Basso submitted that she was not responsible for the contraventions, and she asked the Commission to reverse the District Manager’s determinations.  When the TSLs were awarded to Ms. Basso, she had a domestic relationship with Klaus Orleans, who was identified in Ministry documents as the agent and principal operator for Ms. Basso.  Ms. Basso testified that she was not a logger, was rarely at the logging sites, and that she had no involvement with the TSLs other than being the named licensee and paying related bills.

The Commission found that failing to inform herself of what was happening at the harvest sites, or lack of knowledge of her legal obligations under the TSLs, did not relieve Ms. Basso from her legal responsibilities as the licensee, including her potential liability for the contraventions.  Section 71(3) of the Forest and Range Practices Act (“FRPA”) makes a person vicariously liable for the contraventions of their contractor, employee or agent.  Accordingly, the Commission found that Ms. Basso was responsible for her operator’s contraventions of section 96(1), where the evidence shows on a balance of probabilities that the contraventions occurred.

Based on the evidence, the Commission held that the unauthorized cutting of green trees took place during harvesting operations on two of the TSLs, but the unauthorized harvesting on the third TSL occurred after the harvesting operations were completed.  Accordingly, the Commission confirmed the District Manager’s findings that Ms. Basso contravened section 96(1) of the Code in relation to two of the TSLs, but rescinded the determination that there was a contravention in relation to the third TSL.  The Commission also found that none of the defences listed under section 72 of the FRPA applied to the two contraventions that were confirmed.

In determining the appropriate penalties for the two contraventions that were confirmed, the Commission considered the factors listed under section 71(5) of the FRPA, as well as the fact that Ms. Basso’s liability arose from her willingness to benefit a domestic relationship, not because she was a logger for whom the salvage program had been created, and that the Forest District should not have issued the TSLs to Ms. Basso in the first place because she did not meet the qualifications under the Small Business Forest Enterprise Regulation.  Accordingly, the Commission varied the two determinations by reducing the penalties to a combined total of $443.63.

Two of the appeals were allowed in part, and one appeal was allowed.