Keywords:Forest Practices Code of British Columbia Act – ss. 67; 117; proper exercise of discretion; factors to assess penalty.
This is an appeal by Canadian Forest Products Ltd. (“Canfor”) from a review decision by the Ministry of Forests upholding a determination made by the District Manager that Canfor had violated s. 67(2)(b) of the Forest Practices Code by failing to carry out timber harvesting in accordance with its Pre-Harvesting Silvicultural Plan. Canfor did not dispute that the violation had occurred, but appealed the monetary penalty of $5000 assessed against them.
The Commission held that determining whether a monetary penalty should be assessed is a 2 step process: 1) determining whether a penalty should be assessed and 2) what is the appropriate penalty level. Applied to Canfor, the Commission found no evidence of any similar contraventions and that the environmental damage caused by the contravention was minimal. It also found that there was no evidence that this was a repeat violation, the contravention was deliberate or economic benefit was derived from the contravention. The Commission further found that Canfor was cooperative in taking measures to correct the contravention. Based on the application of these factors, the Commission concluded that there was no justification for an administrative penalty. The Commission held that the purpose of a penalty is to ensure compliance with the Code and that, in this case, there was immediate and voluntary compliance by Canfor. It also held that a penalty should not be ordered for the purpose of recovering economic loss for the costs involved in investigating possible violations of the Code. The Commission upheld the determination but rescinded the penalty of $5000. The appeal was allowed.