The appellant, Pope & Talbot, was granted cutting rights to land in the Arrow Boundary Forest District. Logging was carried out by a subcontractor, who in turn retained a falling subcontractor to cut the trees. The falling subcontractor mistakenly clear cut an area in contravention of the Forest Practices Code of British Columbia, R.S.B.C. 1996 (“the Code”). The District Manager found that the appellant, the contractor, and the falling subcontractor contravened the Code and imposed a penalty. The Court upheld that decision.

23. February 2010 0

Administrative law – Decisions of administrative tribunals – Forest Appeals Commission – Penalties – Forest practices – Due diligence – test – Contracts – Subcontractors – Judicial review – Compliance with legislation – Standard of review – Correctness

Pope & Talbot Ltd. v. British Columbia, [2009] B.C.J. No. 2492, 2009 BCSC 1715, British Columbia Supreme Court, December 14, 2009, B. Fisher J.

The common law defence of due diligence has been imported into s. 72 of the Forest and Range Practices Act, S.B.C. 2002, c. 69. The appellant appealed the Manager’s decision to the Forest Appeals Commission on the basis that it was duly diligent and the error was entirely the responsibility of the contractor and subcontractor. The Commission rejected the appellant’s argument. In so doing, the Commission applied a test for due diligence that has been accepted in Forest Appeals Commission jurisprudence. The test considers: (1) whether the event was reasonably foreseeable; and (2) if so, did the company take all reasonable care to establish a defence of due diligence. Applying the test to the circumstances of this case, the Commission held that the appellant had not established the defence of due diligence because it was reasonably foreseeable that a falling subcontractor could contravene the Code and this could have been prevented with greater effort on the part of the appellant. The appellant appealed to the B.C. Supreme Court.

The B.C. Supreme Court held that the appropriate standard of review is correctness and that the Commission’s formulation of the due diligence test, as set out in its jurisprudence, was wrong. The due diligence test should consider: (1) whether the accused’s conduct is “innocent” as a result of a mistake of fact; and (2) if there is no mistake of fact, whether the accused has taken all reasonable steps to avoid the particular event. The “particular event” in the second branch of the test is the actus reus of the offence, and not the circumstances that gave rise to the contravention.

This case engages the second branch of the test only. Although the Commission articulated the test incorrectly, it did consider whether the falling subcontractor’s behaviour could have been reasonably anticipated by the appellant. This is a factor that may be considered when assessing whether an accused has taken all reasonable steps to avoid the “particular event.” Accordingly, the Court dismissed the appeal.

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