Decision Date: September 4, 1997

Panel: Toby Vigod, Gerry Burch, Bruce Devitt

Keywords: Forest Act – s.138, s.139; Forest Practices Code of British Columbia Act – s.96, s.117, s.119, s.123; unauthorized timber harvest; trespass; penalty quantum; trespass

MacMillan Bloedel appealed a decision to levy a penalty of $83,343.15 for unauthorized harvesting of timber by MB’s contractor. MB argued that, upon proper consideration of section 117(4) factors, the amount of the penalty should be reduced because it exercised all reasonable care and its due diligence efforts should have been considered in determining the amount of the penalty. MB further argued that it had no previous contraventions under the Code, the affected area was small, the violation was not repeated nor deliberate, it received no economic benefit, and it was cooperative once the contravention was identified.

The Commission determined that for the purposes of considering “previous contraventions of a similar nature” under section 117(4)(b)(i) of the Code, contraventions under the predecessor sections of the Forest Act are not included as “previous contraventions.” The Commission found that MB had no similar previous contravention under the Code and that the contravention was not repeated. The Commission also found that MB had not derived any economic benefit from the contravention and that MB was cooperative. However, as for the deliberateness of the contravention, the Commission found that while due diligence is not a defence to a contravention, evidence of reasonable care is relevant to an assessment of the amount of a penalty. The Commission concluded that MB had not exercised all reasonable care so as to prevent the contravention. The Commission upheld the penalty amount of $83,343.15 and concluded that it was not out of line with similar penalties assessed under the Forest Act and the Code. Also, the Commission urged the Ministry of Forests not to allow unauthorized, felled timber to be left on the ground to deteriorate. The Commission dismissed the appeal.