Decision Date: May 11, 2015

Panel: Jim Hackett

Keywords: Private Managed Forest Land Act – ss. 26(5), 29; Private Managed Forest Land Council Regulation – s. 21; road maintenance; land slide; due diligence; mistake of fact; penalty

Erie Creek Forest Reserve Ltd. (“Erie Creek Ltd.”) appealed a reconsideration decision issued by the Private Managed Forest Land Council (the “Council”), which confirmed a previous determination of contravention and penalty issued by the Council. The Council determined that Erie Creek Ltd. had contravened section 21(3) of the Private Managed Forest Land Council Regulation (the “Regulation”) by failing to maintain the structural integrity of a road prism and failing to ensure the proper functioning of the roads’ drainage systems, resulting in a material adverse effect on fish habitat. Part of a logging road that was used and maintained by Erie Creek Ltd. failed during the spring of 2012. Two slides occurred on the road within 100 metres of one another, causing damage to the road surface and depositing slide debris into a fish stream below the road. The Council levied an administrative penalty of $7,500 against Erie Creek Ltd, and ordered it to conduct remedial work.

On appeal, Erie Creek Ltd. submitted that the defences of due diligence and mistake of fact in section 29 of the Private Managed Forest Land Act (the “Act”) applied to absolve Erie Creek Ltd. from liability for the contravention, and that the administrative penalty was inconsistent with the factors that must be considered under section 26(5) of the Act.

The Commission first considered whether Erie Creek Ltd. had established that either the defence of mistake of fact or the defence of due diligence applied in the circumstances. Based on the evidence, the Commission found that neither of those defences applied.

For the mistake of fact defence to succeed, Erie Creek Ltd. had to prove, on a balance of probabilities, that it reasonably and honestly believed in the existence of facts that, if true, would establish that it did not contravene section 21 of the Regulation. The Commission found that Erie Creek Ltd. may have honestly believed that the road was stable after it was repaired in early 2011 in accordance with an engineer’s design, but that belief was not a reasonable one. The Commission found that Erie Creek Ltd. was aware of the roads’ characteristics that created a high risk of slope failure that could impact the fish stream. Erie Creek Ltd. knew, or should have known, that there was a high risk of slope failure in the road section where the slides originated, and that a slope failure could have a material adverse effect on the fish stream below the road. Specifically, Erie Creek Ltd. was aware that the road was built many years ago when road-building standards were lower than modern standards, the road has steep side slopes, and the road is in an area of high precipitation. Also, in early 2011, Erie Creek Ltd. repaired the road within a one kilometre stretch of road where the slides occurred, including at the point where one of the 2012 slides originated. The repairs were done because chronic erosion had made the road too narrow for logging trucks. The Commission held that, although precipitation during spring 2012 was higher than normal, it was not unprecedented, and there was no evidence that Erie Creek Ltd. had turned its mind to whether the road would be able to withstand foreseeable high precipitation events during the winter/spring, when Erie Creek Ltd.’s practice was to leave the road unmonitored.

For the defence of due diligence to succeed, Erie Creek Ltd. had to prove, on a balance of probabilities, that it took all reasonable steps to avoid the contravention. In particular, it had to show that it had a system to prevent the contravention from occurring, and it took reasonable steps to ensure the effective operation of that system. The Commission found that Erie Creek Ltd. failed to establish that it had a system in place for assessing the risk of material harm to fish habitat from a failure of the road prism or the road’s drainage systems, and determining whether action should be taken to mitigate those risks. Erie Creek Ltd. provided no evidence that it considered whether measures should be taken with the road prism or drainage structures to avoid a material adverse effect on fish habitat that could foreseeably arise during the winter/spring, when Erie Creek Ltd. left the road unmonitored. The road repairs conducted in early 2011 were not part of a system designed to minimize or prevent negative impacts on the environment caused by inadequate maintenance of the road.

Given that neither of the defences applied, the Commission considered whether the administrative penalty was appropriate based on the facts and the factors that must be considered under section 26(5) of the Act. Based on those considerations, and given that the maximum penalty for a worst case scenario is $25,000, the Commission found that the penalty should be reduced to $3,000. In particular, the Commission found that: Erie Creek Ltd. reported the slides, cooperated with the Council’s investigation, and took steps to repair the damage before it was ordered to do so; Erie Creek Ltd. had no previous contraventions; the contravention was not deliberate or continuous; Erie Creek Ltd. received no economic benefit from the contravention; and, although there was a permanent loss of fish habitat, the lost habitat was of marginal importance to fish.

The appeal was dismissed, except for the reduction of the administrative penalty.