Panel: Barbara Fisher, Rob Kyle and Kristen Eirikson
This is an appeal by Rustad Bros. & Co. Ltd. (‘Rustad’) from a review decision that varied a December 13, 1995 determination by the Acting District Manager. The Acting District Manager determined that Rustad contravened section 96(1) of the Code by damaging Crown timber, and levied an administrative penalty of $304.14. The Review Panel varied the determination by rescinding the penalty, but upheld the contravention. Rustad appealed to the Commission on the grounds that the word ‘damage’ in section 96(1) includes only the damage related to economic loss, and the minor nature of the damage that occurred in this case does not constitute ‘damage’ as that word is used in section 96(1). Alternatively, Rustad submitted that if there was damage within the meaning of section 96(1), it was of such a minor and inconsequential nature that it does not warrant any administrative action. Rustad used the de minimis principle as a defence, which is based on the proposition that the Legislature does not intend to attach penal consequences to trivial or minimal violations of a provision.
The Commission found that the word ‘damage’ in section 96(1) means damage in the ordinary sense of the word, and is not restricted to damage related to economic loss. While the damage to the trees in this case was minor, the Commission concluded that Rustad did contravene section 96(1). The Commission found that the de minimis principle should not be applied in this case because while the damage was minor, it was not so inconsequential as to amount to a ‘mere trifle’. If the actions of Rustad were continued in practice, it cannot be said that there would be no harm to the public interest. However, the Commission found that while it is appropriate that the Ministry of Forests keep a record of Rustad’s contravention, the review panel’s decision to rescind the penalty was justified. The appeal was dismissed.