Policy 16.22 - Selection and Responsibilities of Review Officials and Panel Members for Administrative Reviews - Section 127 and 128

Effective Date: 05-June-95
Responsible Branch: Compliance and Enforcement Branch

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Scope

This policy covers the selection and major responsibilities of Review Officials and panel members participating in Administrative Reviews as provided for by sections 127 and 128 of the Forest Practices Code of British Columbia Act, and prescribed by the Administrative Review and Appeal Procedure Regulation.

Purpose

To ensure that personnel participating in Administrative Reviews adhere to legislated requirements and uphold the rights of the appellant, and to ensure Senior Official determinations, or decisions not to make a determination, are done in a procedurally correct and fair manner.

Definitions

For the purpose of this policy:

"Act" means the Forest Practices Code of British Columbia Act

"appellant" means a person that appeals a review decision under section 131(1) of the Act. Appellant includes the board if the board:

a) appeals such a review decision; or,

b) under section 131(5) is a party to an appeal of a review decision

"board" means the Forest Practices Board established under section 190 of the Act

"commission" means the Forest Appeals Commission established under section 194 of the Act

"determination" means any act, omission, decision, procedure, levy, order, or other determination made under this Act, the regulation, or the standards by an official or a senior official

"official" means:

a) a designated forest official; or,

b) a designated environment official; or,

c) a designated energy, mines, and petroleum resources official

"panel" means person or persons employed under the Public Service Act and designated as reviewers by the review official

"panel chair" means a panel member chairing the review panel

"regulation" means the Administrative Review and Appeals Procedure (Forest Practices Code of British Columbia Act) Regulation

"requesting person" means a person who makes a written request for a review of determination. This includes the board if the board makes a written request for a review of a determination or of a failure to make a determination.

"review official" means

a) for all purposes relating to a request for review by the requesting person, means the official specified in the notice of determination

b) for purposes relating to a request by the board under section 128(2) of the Act, means the Deputy Minister

"reviewer" means the person or persons assigned by a review official for the purpose of a review of a determination referred to in section 129 of the Act

"senior official" means

a) a District Manager or Regional Manager; or,

b) a person employed in a senior position in the Ministry of Forests, who is designated by name or title to be a senior official for the purposes of this Act by the Minister of that ministry; or,

c) a person employed in a senior position in the Ministry of Environment, Lands and Parks, who is designated by name or title to be a senior official for the purposes of this Act by the Minister of that ministry; or,

d) a person employed in a senior position in the Ministry of Energy, Mines and Petroleum Resources, who is designated by name or title to be a senior official for the purposes of this Act by the Minister of that ministry

It is Ministry Policy that:

Designation of Review Official

Each Regional Manager and the Director of Protection Branch shall designate in writing a Review Official, and forward the name of that person to district offices, the Forest Practices Board, and the Director of Enforcement Branch.

Each Regional Manager and the Director of Protection Branch should designate in writing a alternate person to act on behalf of the Review Official during his or her absence, and forward the name of that person to district offices, the Forest Practices Board, and Director of Enforcement Branch.

The Assistant Deputy Minister of Operations shall also designate a Review Official and alternate for the purpose of reviewing determinations made by the Regional Manager or Director of Protection Branch, and to handle requests from the Board made under section 128(2) of the Act, and forward the name of that person to the regional office, Protection Branch, Enforcement Branch, and the Forest Practices Board.

*Note: There is no requirement for Review Officials to be Senior Officials.

Responsibility of Review Officials

Review Officials are responsible for:

1. a) Checking the request for review received from the requesting person or the board (except for requests received under 128 (1) (b) of the Act) for validity and completeness as required by section 3 of the Regulation, and
   
   

   b) Conducting activities as required by section 4 of the Regulation if deficiencies exist in the written request for review;
   
   

   c) Notifying affected parties following receipt of the written request for review as prescribed in section 5 of the regulation.
   
   

2. a) Determining if a panel or single reviewer is appropriate for the review and determine membership of panel to conduct review;
   
   

   b) Ensuring panel members have not participated in the determination or investigation associated with the determination which is the subject of the review;
   
   

   c) Designating a panel member as panel chair.
   
   

3. a) Arranging the scheduling of meeting rooms, recording of oral hearings if necessary, and distribution of panel findings;
   
   

   b) Ensuring all legislated time frames pertaining to the review are followed and amended where necessary as provided for in the Act.
   
   

4. Distributing reviewers decision to the appropriate parties
   
   
5. Updating the Enforcement Action, Administrative Review and Appeal Tracking System (ERA).

Panel Member (Reviewer) Selection

Panel member selection is the sole responsibility of the Review Official. Selection will be made on the basis of section 129 in the Act and section 6 of the Regulation, which outlines the procedures following receipt of written request for review.

In addition, the Review Official will select reviewers from other ministries where appropriate and as provided for in the Memorandum of Understanding and Local Agreements.

A review may be performed by one individual or a panel as determined by the Review Official. There is no prescribed limit regarding panel membership, and therefore requires discretion on the part of the Review Official regarding panel size and composition. When determining panel membership the Review Official must consider:

1. the seriousness and complexity of the case;
   
   
2. current ministry workloads; and,
   
   
3. the public interest.

Composition of Review Panels

Normally, Review Officials will not participate directly as a review panel member. However, under certain circumstances, the need to expedite a review may require direct participation of the Review Official who may:

1. conduct a review as a panel of one where the request for review pertains to a specific and/or minor matter;
   
   
2. chair a review panel for the sake of efficiency;
   
   
3. participate as a panel member where the best interests of the public are served;
   
   
4. attend review panel hearings as an "outside member", with no voting privileges to observe procedure and suitability of panel membership.

Reviews of determinations which are linked to investigations or enforcement actions by other agencies, or require expert advice and/or evaluation held by personnel in other agencies, may require joint membership of the review panel. Under no circumstances will review panel membership include personnel not employed under the Public Service Act. Advice from parties who are not employees of the government may be solicited by the review panel. Legal advice will provided by ad hoc counsel through the Legal Services Branch.

To avoid split votes and resulting delays, review panels will consist of an odd number of members. All stages of the review must have participation of the complete panel.

Decisions of the panel will be determined by the majority when all members are present. The Chair of the panel does not have veto powers.

If one or more members of the panel are unable to complete the review, the Review Official may either:

1. designate a new member(s) to complete the review if no hearing has occurred; or,
   
   
2. decide to complete the review with the remaining panel members.

If either occurs the Review Official must notify all affected parties in writing.

Complaint of Reviewer Selection

No statutory provision exists for the appellant to participate in the selection of reviewers.

When a complaint occurs regarding the panel membership, the Review Official must ascertain if the complaints are well founded. It is the sole responsibility of the Review Official to decide if reviewer membership should be changed and may be done at his or her discretion.

If review membership is changed, the Review Official must notify all parties in writing documenting the reason for membership change. The review period may not be extended under such circumstances.

Responsibilities of the Review Panel Chair and Members

Upon selection of the review panel, all subsequent activities are the responsibility of the panel chair. Review panels must consider review responsibilities as a priority task and respect the legislated time requirements for completion of the review and delivery of the written decision which is within 60 days of receipt of an acceptable request for review. When scheduling activities, consideration of the time needed to prepare and deliver associated documents must be considered, for both the review panel and other involved parties.

Upon establishment of the panel and designation of the chair, it must be determined by the panel chair if a hearing will be conducted, or if the review will be based on written submissions and other existing evidence. The panel chair will notify the Review Official of this decision in order that the Review Official can arrange the necessary facilities.

Upon completion of the review, the panel chair is responsible for ensuring that the panel decision, and recommendations regarding that decision, are properly documented, signed by each panel member, and submitted to the Review Official for distribution to the appropriate parties, with a copy to the Administrative Review and Appeals Officer at Enforcement Branch.

Discovery of Matters Beyond Scope of Review

The discovery of matters beyond the scope of the review involving activities outside of forest legislation or not in the best interests of the Ministry may occur. If discovery does occur of other matters, the Regional Manager or District Manager shall be notified. Discovery of matters involving third parties or personnel employed under the Public Service Act should be brought to attention of the Regional Manager, Assistant Deputy Minister of Operations, or Enforcement Branch. It is the responsibility of these officials to act upon such matters.

References

• Forest Practices Code of British Columbia Act
• Administrative Review and Appeals Procedure (Forest Practices Code of British Columbia Act) Regulation
• Public Service Act

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