Decision Date: June 25, 2019
Panel: Gabriella Lang
Keywords: Forest and Range Practices Act – ss. 22(2), 112(3); Forest Planning and Practices Regulation – s. 72; bridge maintenance; load limit; stop work order; administrative penalty; due diligence; mistake of fact
Lemare Lake Logging Ltd. (“Lemare”) appealed a determination issued in April 2018 by the District Manager (the “Manager”), North Island – Central Coast Natural Resource District, Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”). The Manager determined that Lemare had committed three contraventions associated with failing to properly maintain a bridge on a forest service road, continuing to use the bridge for hauling timber when the bridge was subject to a 5-tonne load limit, and failing to obey a stop work order.
The contraventions arose from the following circumstances. Lemare holds a road use permit that requires Lemare to maintain a forest service road and associated bridges on northern Vancouver Island. On March 9, 2016, Ministry staff notified Lemare that rotten guard rails on a bridge required immediate replacement. On March 23, 2016, the Ministry notified Lemare that the bridge repairs were still not done, and the load rating of the bridge would be downgraded to 5 tonnes due to safety concerns. 5-tonne load limit signs were posted at both ends of the bridge.
On April 1, 2016, the Ministry issued a stop work order requiring Lemare to stop using the bridge with vehicles exceeding 5 tonnes. The order stated that it was to remain in effect until the bridge was safe for vehicles exceeding 5 tonnes, as signed off by a professional engineer and Ministry engineering staff. On April 4, 2016, Ministry staff examined Lemare’s logging truck transportation documents, and found load slips indicating that Lemare had transported several timber loads exceeding 5 tonnes across the bridge while the load limit and the stop work order were in effect. On April 7, 2016, the stop work order was rescinded, as the bridge repairs were confirmed to be complete.
The Manager found that Lemare had contravened: section 72 of the Forest Planning and Practices Regulation for failing to maintain a bridge on a forest service road and ensure that it was structurally safe for use by industrial users (the “Bridge Safety” contravention); section 22(2) of the Forest and Range Practices Act (the “Act”) by using a forest service road in a manner inconsistent with the 5-tonne load limit signs (the “Load Limit” contravention); and, section 112(3) of the Act for failing to comply with the stop work order (the “Stop Work Order” contravention). The Manager levied administrative penalties of $5,000 and $15,000, respectively, for the Load Limit contravention and the Stop Work Order contravention. The Manager did not assess a penalty for the Bridge Safety contravention.
Lemare appealed the determination and asked the Commission to set aside the determination on the basis that Lemare had established the defences of due diligence, or mistake of fact, for the contraventions, and the penalties are excessive in the circumstances.
The Commission found that those defences did not apply. Specifically, the Commission held that Lemare had no system in place to regularly monitor or inspect the condition of the roads and bridges it was responsible for maintaining, when the Bridge Safety contravention occurred. Also, regular users of the road should have reported the deterioration of the bridge’s guard rails before the Ministry informed Lemare of the immediate need for repair. The repairs could have been expedited once Lemare was notified of the need to immediately address a safety issue, but the repairs were expedited only after the stop work order was issued. Lemare acknowledged that several of its loaded logging trucks exceeding 5 tonnes crossed the bridge while the load limit signs were posted. Lemare’s staff knowingly proceeded with hauling operations contrary to the posted load limit signs. Lemare also acknowledged that its drivers crossed the bridge when the stop work order was in place.
Based on the factors to be considered under section 71(5) of the Act regarding penalty amounts, and the objective of deterrence, the Commission varied the penalty amounts by ordering Lemare to pay $3,000 for the Bridge Safety contravention, $5,000 for the Load Limit contravention, and $12,000 for the Stop Work Order contravention.
Accordingly, the appeal was dismissed.