Third Party: Forest Practices Board
APPEAL NO. 1997-FOR-07 and 1997-FOR-10

This appeal involved cross-stream yarding of logs by Hayes, a contractor for TimberWest contrary to a logging plan. Both Hayes and TimberWest appealed, and the FAC addressed the appeals in two separate decisions.

Hayes Appeal:

The practice of yarding logs across a stream was prohibited by the Timber Harvesting Practices Regulation, unless expressly authorized by a logging plan. In this case, the logging plan did not allow cross-stream yarding. Failure to carry out harvesting in accordance with a logging plan was also a contravention under the Code.

The Board took the position that while persons can be found to be in contravention of two or more sections of the Code for a single action, they should not be found to be in contravention of two or more sections of the Code for a single action where there is a single legal prohibition. The Board also argued that when determining the penalty amount, previous contraventions are not “effective” until a person has exhausted his/her rights of review or appeal. In this case, two determinations of contraventions of the Code were made by a senior official, but were later rescinded by a Review Panel. The Board argued that a rescinded contravention is not a “previous contravention.”

The FAC found that Hayes was in contravention of section 67(1) of the Code for yarding in the wrong direction and cross-stream yarding contrary to the provisions of the logging plan and section 8(1) of the THPR for cross-stream yarding contrary to the logging plan. The FAC reduced the penalty due to improper considerations by the Review Panel, and assessed one penalty of $4,000 for these contraventions.

Appeal allowed in part.

FAC Decision (Hayes): http://www.fac.gov.bc.ca/forestPracCode/1997for07.pdf

TimberWest Appeal:

Licensees are vicariously liable for the actions of their contractors under section 117 of the Code: TimberWest argued that it was entitled to the defence of due diligence because of its instructions to Hayes. The Board argued that the FAC should uphold its previous rulings that due diligence is not available as a defence to administrative contravention determinations. The FAC agreed and dismissed the appeal. No penalty was assessed against TimberWest.

Appeal dismissed.

FAC Decision (TimberWest): http://www.fac.gov.bc.ca/forestPracCode/1997for10.pdf