The Sunshine Coast Conservation Association (“SCCA”) complained to the Association of British Columbia Forest Professionals (“ABCFP”) about the conduct of a registered professional forester (“RPF”). The ABCFP Registrar rejected the complaint on the basis that even if the allegations were proven, they did not involve a breach of the Foresters Act or the applicable bylaws or resolutions of the ABCFP.

24. April 2007 0

Administrative law – Forest professionals – Disciplinary proceedings – Code of ethics – Natural resources – Environmental issues – Forest practices – Wildlife habitat – Judicial review – Compliance with legislation – Failure to provide reasons – Standard of review – Correctness

Sunshine Coast Conservation Association v. Association of British Columbia Forest Professionals, [2007] B.C.J. No. 281, British Columbia Supreme Court, February 12, 2007, Gray J.

The RPF who was complained about was employed by Interfor and was responsible for forest development plans that were submitted to the District Manager of the Sunshine Coast Forest District and for applications to harvest areas within a forest development plan.

The SCCA’s complaint was that the forest development plans illustrated non-compliance with the Code of Ethics and Standard of Professional Practice for registered professional foresters. In particular, the RPF had approved a forest development plan that failed to include measures for the management of a particular species, the marbled murrelet (a species of diving sea bird) which the SCCA said he was professionally obligated to include in the forest development plan.

The RPF was alleged to have misrepresented the status and availability of information about wildlife habitat in a particular forest development plan at a particular time, specifically whether there was a potential marbled murrelet habitat in the plan area.

There was also an allegation that the RPF proposed logging in a critical wildlife habitat that was an ungulet winter range. There were other allegations along similar lines.

The ABCFP bylaw entitled “The Code of Ethics” includes a responsibility of a member of the ABCFP to the public to “advocate and practice good stewardship of forest land based on sound ecological principles to sustain its ability to provide those values that have been assigned by society.” The Code of Ethics also included requirements for truthful and accurate statements on forestry matters and an obligation to inform the client or employer of any action planned or undertaken by the client or employer that the member believes is detrimental to good stewardship of forest land.

The SCCA also relied on bylaw 17 titled “Standards of Professional Practice”. This bylaw imposes a requirement that members be competent, exercise appropriate judgment and maintain sufficient knowledge in their field of practice.

The SCCA Registrar decided not to accept the complaint and counsel for the SCCA invited the Registrar to reconsider his decision on the basis of alleged errors by correspondence dated March 18, 2004.

The Registrar had held that the RPF’s conduct was the result of incorrect administrative interpretation rather than a breach of ethics by the RPF. The Registrar declined to provide detailed written Reasons on all of the allegations made and upheld its decision.

Cullen J set aside the first rejection by the Registrar and directed the Registrar to reconsider his decision in light of s.22 of the present Foresters Act in Reasons for Judgment dated August 26, 2005. The Foresters Act, in that form was in force on the date the complaint was received, whereas the old Foresters Act had been in effect at the time that the RPF performed the acts which gave rise to the complaint. The Registrar reconsidered his decision and again rejected the complaint. The second rejection gave rise to the Judicial Review proceedings before the Court.

The Registrar’s second rejection stated that s.22(6) of the Foresters Act indicated that to accept a complaint, the Registrar must be satisfied that each of the four tests set out in the section were met. Section 22(6) reads:

The Registrar must accept a complaint if satisfied that:

(a) the complaint concerns a member or former member;

(b) sufficient information has been provided to allow an investigation to proceed;

(d) the parties cannot resolve the matter on a reasonable and appropriate basis.

The Registrar found that although the complaint concerned a member and that sufficient information had been provided, the allegations, if proven, did not involve a breach of the Foresters Act, its bylaws or the resolutions of the Association.

The Court considered the applicable standard of review by reviewing the four factors from Pushpanathan.

The Foresters Act does not include a privative clause but there is a statutory right of appeal from the ultimate decision of the Disciplinary Panel under the Foresters Act.

The Registrar’s expertise was a more complex question, in that the particular Registrar in this case was not an RPF but had a degree in law and business administration. The Registrar would be expected to be familiar with the Foresters Act, its bylaws and the resolutions of the ABCFP, and as a result, there might be some expertise of the Registrar in the area of making determinations on a complaint, while the Court would have greater expertise in distinguishing between facts, allegations and argument.

The Foresters Act has, among its objects, upholding the public interest respecting the practice of professional forestry by ensuring the competence, independence, professional conduct and integrity of its members and ensuring that each person engaged in the practice of professional forestry is accountable to the ABCFP. The nature of the problem here was a question of law and analysis rather than fact and accordingly, the standard of review should be one of correctness.

The Court then turned to the Registrar’s decision on the second rejection of the complaint. The Registrar’s Reasons failed to explain why the allegations, if proven, would not involve breaches of the applicable legislation or the ABCFP bylaws or resolutions. The Registrar focused instead on whether the spheres of interest affected by his decision and whether the allegations were “provable” and whether the burden of proof could be met.

These Reasons for Judgment were held to be insufficient. The Court held that judges have a duty to deliver reasons in sufficient detail for parties to understand why they won or lost, and that non-judicial tribunals should not be held to as high a standard as the Court in providing Reasons. However, the Reasons of the Registrar took into account irrelevant considerations and failed to take into account all relevant considerations.

The Court did not hear full argument on the issue of which bylaws were applicable to the Acts noted in the complaint and therefore the Court could not reach a conclusion as to whether the Registrar’s rejection of some or all of the complaint was patently unreasonable. The decision of the Registrar in the second rejection of the complaint was set aside and the Registrar was directed to reconsider his decision in light of his duty to assume that the allegations made in the complaint were proven.

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