Policy 16.10 - Making Statutory Determinations

Effective Date: 09-January-06
Responsible Branch: Compliance and Enforcement Branch

Scope

This policy applies to the making and recording of statutory determinations under sections 71 and 74 of the Forest and Range Practices Act (FRPA). This includes the enforcement of some provisions of the Forest Act, the Range Act, the Forest Practices Code of British Columbia Act, and regulations made under those Acts.

This policy also applies to contravention, remediation, and cost recovery determinations made under sections 25, 26, 27 and 28 of the Wildfire Act.

This policy does not apply to determinations made pursuant to Forest Act or Range Act authority, or to provisions of FRPA other than sections 71 and 74. However it can serve as general guidance for determinations made under those statutes.

This policy also does not apply to determinations with respect to compensation by the government of others' fire suppression costs under section 17 of the Wildfire Act.

Purpose

To ensure that determinations are made in a procedurally fair manner, with due regard for the rules of administrative law, principles of natural justice, and the legislative framework.

Definitions

For the purposes of this policy:

"delegated decision maker" (DDM) means a person delegated by the minister to make a statutory decision, or that person's sub-delegate.

"deliver" means to provide notice by one or more of the means pursuant to section 110(1) of FRPA and section 63 of the Wildfire Act.

"evidence" means any information – documentary, oral, photographic, or in any other form – presented to a DDM to support, or shed light on, a case.

"ERA" means the Enforcement Action, Administrative Review, and Appeals system for tracking all investigations, determinations, enforcement actions and appeals.

"OTBH evidence binder" means the summary of findings of the investigation, including but not restricted to: a description of the alleged contravention(s); an analysis of the elements of each contravention; evidence that proves each element of each contravention; a history of past performance by the person responsible; a description of the enforcement options available for each contravention; the relevant legislative provisions and policies; and recommendations with respect to appropriate enforcement options and remedies.

"investigator(s)" means the designated forest officials or forest officers who conduct an investigation, develop the OTBH evidence binder and/or present the case to the DDM for determination.

"party" has the same meaning as "person responsible".

"person" includes a corporation, partnership or party, and the personal or other legal representatives of a person to whom the context can apply according to law.

"person(s) responsible" or "party" means the person who was either carrying out the regulated activity or supervising, controlling, or licensed to engage in, the regulated activity, which resulted in the alleged contravention and against whom a case has been brought forward for determination.

Policy

It is Ministry policy that:

OTBH Evidence Binder

Where an investigator will be recommending action under sections 71 or 74 of FRPA, or sections 26 or 28 of the Wildfire Act, the investigator will complete an OTBH evidence binder, notify the appropriate DDM in writing, request that a determination be considered in the matter, and ask the DDM to schedule a date for an Opportunity to be Heard (OTBH).

Districts may adopt either of the following practises:

• The investigator sends the OTBH evidence binder to the person(s) responsible at the same time as he/she gives it to the DDM; or
• The DDM sends the OTBH evidence binder to the person(s) responsible when he/she sends the OTBH invitation letter.

Opportunity to be Heard (OTBH)

Section 71(1) of FRPA and section 26 of the Wildfire Act require the DDM to give the person(s) responsible an OTBH before making a determination of contravention under those sections, and, if persons do not avail themselves of the OTBH, to wait one month from the date offered for the OTBH before making a determination. Various other sections of these Acts also require an OTBH before a determination can be made.

The OTBH may be oral or done by written submissions. An oral OTBH may be in person or by telephone. OTBH hearings can range from informal to formal, based on the circumstances and wishes of the person(s) responsible. The district, region or fire centre will attempt to canvass the person responsible on convenient hearing dates and on preference for an oral OTBH or written submissions, before setting dates for the OTBH and deciding upon the type of hearing. Where the person(s) responsible is not responsive, the DDM should schedule a date for the OTBH and advise the person of it.

The investigator may recommend that the OTBH be conducted by written submissions or oral hearing, and provide reasons for the recommendation. The person(s) responsible must be given the opportunity to respond to this recommendation and the DDM will make a final decision as to the type of hearing after considering all submissions on the matter. Unless there is a strong and persuasive reason for refusing a request by a person responsible for a particular type of hearing, the person's request should be granted.

Although the final decision with respect to dates and hearing format rests with the DDM, it must be borne in mind that the OTBH is an opportunity offered to the person responsible. A person responsible is not obliged to accept the offer and may choose to only submit written submissions even though they have been offered an oral hearing, or may choose to submit nothing. An adverse finding with respect to the alleged contravention should not be made on the basis that the person responsible did not accept the OTBH offer.

The offer of an OTBH:

• Should be made within 90 days of receiving the OTBH evidence binder, bearing in mind the relevant limitation period;
• Should be made via the appropriate template letter: offer of OTBH prior to contravention determination;
• Should include a copy of the Bulletin: "The Opportunity to be Heard Process";
• Must provide the person(s) responsible adequate time to prepare. This would normally be at least 45 days from the date of the OTBH invitation letter. (Shortening of this timeframe should only occur where circumstances require an expedited process or with agreement of the person responsible).

Case Management Conference

Prior to the hearing or submissions, the DDM may convene a case management conference, in person or by telephone, to resolve preliminary procedural issues such as setting dates for the hearing or written submissions, questions around document disclosure, determining how much time will be required for the hearing, or sharing information about the number and identities of witnesses, experts and expert reports.

The purpose of a case management conference is to allow the OTBH to be run more efficiently. The meeting is not a pre-hearing and can not be used to discuss substantive issues in the case or the merits of the case.

Normally, a case management conference should only be convened where there is more than one person responsible, the case is complex, and where there are preliminary issues that the parties and investigator cannot resolve amongst themselves.

Procedural fairness requires that the DDM never meet privately with the investigator or a party to discuss substantive issues in a case in which he or she will be making a determination. This does not preclude a DDM from meeting privately with a party to address procedural matters if other parties decline to attend. However, all parties must be given the opportunity to attend and participate in the case management conference, if one is held. The investigator should also be invited to attend.

The Oral Hearing

If the person responsible accepts an offer of an oral OTBH, the person, or his or her representative, must be given the opportunity to present relevant evidence, make submissions, present witnesses, ask questions of the investigators and their witnesses, and respond to evidence presented by others.

Where an OTBH is carried out by way of an oral hearing, the person responsible should be given at least 45 days to prepare for it. There may be circumstances that require an expedited process (e.g. the risk of environmental damage) and in these circumstances a DDM may fix an earlier date for the OTBH, bearing in mind rules of procedural fairness.

Investigators should be allowed to present the Ministry's case and witnesses, and, at the discretion of the DDM, to ask questions and respond to evidence presented by others.

Other Ministry of Forests and Range program area staff may be asked to attend the OTBH to give evidence, and the person(s) responsible should be apprised of their attendance when they are sent the OTBH evidence binder, if possible, or as soon as practicable. The underlying principles that must be respected are that the person(s) responsible must have the opportunity to become fully aware of the case that is being brought against them and be given adequate time to prepare to meet it.

The DDM must maintain control of the hearing and may manage procedure, participation and attendance at his or her discretion. This must be done within the bounds of procedural fairness.

A party may have legal or other representation at the OTBH. In the extraordinary event that the representative's behaviour disrupts the hearing, the DDM may exercise control over the hearing by adjourning it temporarily or, if the behaviour persists, by excluding the person from the hearing.

The DDM may exclude witnesses, parties, or investigators from segments of the hearing if the DDM feels that would promote the effective presentation of evidence. A party should only be excluded where there is more than one person responsible subject to a determination at the hearing (i.e. where it is felt that the exclusion of one party for a segment of the hearing would enable another party to properly give or respond to evidence). This must be consistent with the requirement for procedural fairness and the requirement that each person responsible know the case against him or her and be able to adequately respond to it.

Agreed Statement of Facts

Investigating staff and the person(s) responsible may jointly submit an agreed statement of facts at the OTBH or prior to the OTBH for the DDM's consideration. Unless the DDM has reason to question the accuracy of facts contained in the agreed statement of facts, the DDM may accept as proven the facts that have been agreed-to by the parties.

There is no requirement for the person(s) responsible to agree to a statement of facts, and if a person declines, no adverse inference should be drawn against the person.

OTBH by Written Submissions

Where an OTBH is carried out by way of written submissions, the person responsible should be given at least 45 days to prepare their submissions. There may be circumstances which require an expedited process (e.g. the risk of environmental damage) and in these circumstances a DDM may fix an earlier date for the OTBH, bearing in mind rules of procedural fairness.

The investigator may request an opportunity from the DDM to reply to the person's submissions, with reasons for the request. The DDM should grant the request if the DDM deems it necessary to the fact finding exercise. If the investigator is granted the opportunity to reply, the DDM must offer the person responsible the same opportunity. The DDM should only grant further replies or rebuttals by the investigator or parties in exceptional circumstances, and the person(s) responsible must always be afforded the last reply.

Making a Determination

Sub-delegation

DDMs are appointed on a province-wide basis and are therefore not limited to making determinations within their own district, region or fire centre. Accordingly, where a DDM is of the view that he or she can not or should not make a determination, the DDM may ask another DDM to make the determination without the need to sub-delegate authority. A DDM may do this for a number of reasons, including, but not limited to, where workload does not permit the DDM to make a determination within a reasonable amount of time or within the limitation period, or where the DDM believes he or she is in a conflict of interest, including where there may be a perception of bias if the DDM makes the determination.

Although DDMs may sub-delegate their authority to make a determination to another person under section 2(3) of FRPA, sub-delegation under 2(3) is not recommended other than in exceptional circumstances. There is no provision for sub-delegation in the Wildfire Act.

A basic tenet of administrative law is that the person who hears must decide, that is, the person who hears the evidence must also make the determination in the matter. Thus, a DDM must not hold an OTBH and then have someone else make the determination. Nor can the DDM have someone else hold the OTBH and then make the determination him or herself. The person who makes the determination may obtain advice and assistance from staff in making a determination (other than any staff who were in any respect associated with the file); however, the determination must be the decision-maker's alone.

Evidence

The determination must be based on the relevant evidence submitted at or before the OTBH, and on the DDM's findings of fact and interpretation of the law.

Evidence obtained after the OTBH

Evidence obtained after the OTBH may be used in some situations. If a DDM requires clarification of a submission after the OTBH is over, the DDM may seek it from the person who made the submission. When seeking clarification, the DDM may utilize the services of an expert to help frame the questions for the person who made the submission. This may be particularly useful where the DDM is seeking clarification of an expert's report.

If the DDM is of the view that he or she would benefit from another expert's opinion, the DDM may invite the investigator and/or person(s) responsible to submit an expert report or expert evidence after the OTBH. This may arise where only the investigator or the person responsible submitted an expert's opinion at the OTBH and an additional opinion would appear to be beneficial to the fact finding exercise. The DDM should not commission his or her own expert's report.

If the DDM requires additional evidence relating to quantum of penalty, such as harvesting costs, it is acceptable to ask the investigator and person(s) responsible to provide that evidence.

There may also be circumstances where natural justice or the public interest demand that evidence submitted after the OTBH be considered for purposes other than those noted above.

Any evidence obtained after the OTBH that will influence the determination in any way must be provided to the person(s) responsible or the investigator, as the case may be. The investigator may be given the opportunity to respond to the evidence. The person(s) responsible must be given an adequate opportunity to respond to the evidence. Such evidence must not be used to pursue new lines of inquiry in the investigation.

Note that if new evidence emerges that was not available at the time of the original determination, a person responsible is entitled to an administrative review of the determination pursuant to section 80 of FRPA or section 37 of the Wildfire Act. Administrative reviews are covered in more detail on page 13 of this policy.

Defences

If, on balance, the evidence supports the view that the person responsible contravened the law, the DDM must consider the defences in section 72 of FRPA or section 29 of the Wildfire Act and determine their applicability. The onus is on the person responsible to prove, on a balance of probabilities, that a defence applies. However, even if the person responsible does not specifically invoke any of the defences, all relevant evidence that supports a defence must be considered by the DDM. If the DDM determines that a defence applies, the person responsible cannot be found to have contravened FRPA, the Forest Act, the Range Act, the Forest Practices Code of British Columbia Act, or the Wildfire Act or any of their standards or regulations.

Section 106(3) of FRPA - Removal of Economic Gain Despite a Successful Defence

Under FRPA, but not under the Wildfire Act, even when a person is not found to have contravened the law due to the successful application of a defence, section 106(3) of FRPA provides that the person is nevertheless liable to the government for any economic gain that results, directly or indirectly, from the person's act or omission that would have been a contravention or an offence were it not for the defence.

Accordingly, the DDM will calculate any economic gain (i.e. net gain) that resulted, directly or indirectly, from the person's act or omission, and provide the calculations and supporting documentation to the Regional Revenue Program to initiate a claim for its removal. The calculation of an amount under section 106(3) does not form part of the contravention determination under section 71 of FRPA and so should not be included in the determination letter. However, the person responsible should be advised in the notice of determination that the DDM has sent a calculation of economic benefit to the Regional Revenue Program to initiate a claim for its removal pursuant to section 106(3) of FRPA.

Contravention Penalty

After giving the person(s) responsible an OTBH, weighing the evidence, considering the defences, and determining under section 71(1) of FRPA or 26 of the Wildfire Act that a contravention occurred, the DDM may levy a penalty under section 71(2) of FRPA or 27(1) of the Wildfire Act. In levying a penalty, the DDM must have regard for the maximum allowable amounts found in the Administrative Orders and Remedies Regulation for FRPA contraventions and in the Wildfire Regulation for Wildfire Act contraventions.

The DDM may also refrain from levying a penalty. To refrain from levying a penalty under FRPA, section 71(2)(a)(ii) requires that the DDM be of the view that the contravention is trifling and that a penalty is not in the public interest. There is no equivalent section in the Wildfire Act; however the Wildfire Act does provide the DDM with discretion in levying penalties. Accordingly, under the Wildfire Act, a DDM may refrain from levying a penalty if the DDM considers that appropriate in the circumstances.

Under either Act, if the DDM considers that a penalty is appropriate, the DDM should take into account: any economic benefit enjoyed by the person as a result of the contravention; the need for future deterrence; and the need to compensate the Crown for its losses.

Removal of Economic Benefit under FRPA and the Wildfire Act

The DDM may remove any economic benefit (i.e. net gain) derived directly or indirectly by the person responsible from the contravention as per s.71 (5)(e) of FRPA and section 27(3)(e) of the Wildfire Act. Net gain is the profit the person responsible made, after reasonable operational costs have been taken into account. Note that this is distinct from the liability imposed on a person under section 106(3) of FRPA where there has been a successful defence (discussed above at page 6).

Deterrence under FRPA and the Wildfire Act

The DDM should consider whether an amount should be levied for deterrence, taking into account all the factors in section 71(5) of FRPA or section 27(3) of the Wildfire Act, including any amount that will be levied for removing an economic benefit. Consideration of section 71(5)(b) or 27(3)(b) - the gravity and magnitude of the contravention - should take into account, among other things, non-stumpage values and losses, like environmental damage, that cannot be readily quantified.

Specific Deterrence and General Deterrence

In determining an appropriate deterrent amount, if any, the DDM should consider what amount he or she believes will be required to deter the particular person from committing a similar contravention in the future (specific deterrence) and, as well, what amount will be required to deter the general population from doing so (general deterrence). In considering specific deterrence, the penalty should be based on the realities of the person who is subject to the determination.

Compensation under FRPA

Non-Stumpage Losses

The DDM may recover, as part of the compensation component of the penalty, non-stumpage losses that can be readily quantified. For a contravention of section 52(1) or (3) of FRPA, these may include costs that have been or will be incurred by the government in re-establishing a free growing stand, and costs that were incurred by the government for silviculture treatments for areas rendered ineffective by the contravention. If including these costs in the penalty, the DDM should levy the penalty pursuant to section 13(2)(c) of the Administrative Orders and Remedies Regulation. However, for timber that was cut, damaged, destroyed or removed without authority (unauthorized harvest) on or after November 4, 2003, silviculture costs may only be included in the penalty if they will not be included in the stumpage calculated and billed separately by Regional Revenue staff.

Non-stumpage losses that cannot be easily quantified should be considered when determining the gravity and magnitude of the contravention, as noted above in the section on deterrence.

The costs of carrying out an investigation or providing an OTBH cannot be recovered from the person(s) responsible.

Stumpage Losses

    Pre-November 4, 2003 stumpage losses:

Stumpage losses on timber that was cut, damaged, destroyed or removed without authority before November 4, 2003, will be included in the penalty as an "equivalent-to-stumpage" amount (it is not stumpage per se, but an amount equal to it). Any stumpage already paid on the timber will be credited to the person who paid it (because before November 4, 2003, the Ministry did not have the authority to collect stumpage on unauthorized harvest). The equivalent-to-stumpage amount must be added into the penalty as part of the compensatory component.

    Stumpage losses on or after November 4, 2003:

Stumpage losses on timber that was cut, damaged, destroyed or removed without authority on or after November 4, 2003 are treated differently, reflecting changes to the Forest Act that came into force on that date. Stumpage on this timber must be collected, but not by the DDM. The stumpage does not form part of the penalty. Instead, stumpage will be calculated and billed separately by Regional Revenue staff once notified by the DDM of his or her determination. It is thus incumbent upon the DDM to notify Regional Revenue staff of the need to calculate stumpage on the timber.

Pursuant to section 103(3) of the Forest Act, an official designated by the minister must determine the volume of unauthorized harvest. District Managers have been designated as officials by the Minister for this purpose. The determination of volume is not appealable to the Forest Appeals Commission. Regional Revenue staff will use the volume determination to calculate stumpage owing by multiplying the volume by the stumpage rate (and bonus bid, if applicable) that would likely have applied if rights to the timber had been granted. The stumpage rate and bonus bid will be determined by Revenue staff under section 105 of the Forest Act. Regional Revenue staff will credit the person's account with any stumpage already paid. The stumpage rate determination is appealable to the Forest Appeals Commission.

It is important to remember that stumpage does not form part of the penalty; it will be billed separately by Regional Revenue staff when notified by the DDM of his or her determination.

DDMs and investigators can refer to the C&E bulletin of October, 2004, entitled GUIDANCE ON DEALING WITH CROWN TIMBER CUT, DAMAGED, DESTROYED OR REMOVED WITHOUT AUTHORITY for further guidance.

Cost Recovery and Compensation Under the Wildfire Act

Contravenors

In addition to a penalty that may be levied against contravenors under section 27(1)(a) of the Wildfire Act, section 27(1)(b) permits the DDM to recover costs by determining the amount of the government's fire control costs carried out under section 9 for a fire that resulted, directly or indirectly, from a contravention. Further, section 27(1)(c) permits the DDM to compensate the Crown by determining the dollar value of Crown timber, other forest land resources, grass land resources, and other property damaged or destroyed as a direct or indirect result of the contravention.

Any amounts calculated under subsections 27(1)(b) and 27(1)(c) should be added onto the penalty determined under section 27(1)(a), in order to arrive at the total amount for a section 27(1) order. The amounts in subsections 27(1)(a), (b) and (c) must be calculated and shown separately in the Notice of Determination as each amount will be paid into separate ministry accounts.

See the section below entitled "Calculating Costs under the Wildfire Act" for further guidance on calculating fire control costs and Crown losses.

The amounts payable by a person under a section 27(1) order are a debt due to government pursuant to section 130 of the Forest Act. Section 27(2) of the Wildfire Act requires the DDM to notify the person of the order and the amount due, provide the person with a copy of the order and reasons for making the order, and to inform the person of their right to review and appeal.

Non-Contravenors-Leaseholders, Occupiers and Owners of Land

Under section 25(2) of the Wildfire Act, certain leaseholders, occupiers and owners of land on which a fire originated may be required by order to pay the government's fire control costs and compensate the Crown for certain losses if the DDM determines that the person caused or contributed to the fire or its spread. For a DDM to make an order under section 25(2), the government must have carried out fire control authorized under section 9 of the Wildfire Act.

Section 32 of the Wildfire Regulation sets out the prescribed categories of leases for the purposes of section 25(2)(a) of the Wildfire Act.

Section 25(1)(a) of the Wildfire Act provides the DDM with the authority to determine the amount of the government's fire control costs. The DDM may also determine the dollar value of Crown timber, other forest land resources, grass land resources, and other property damaged or destroyed as a direct or indirect result of the fire, pursuant to 25(1)(b). See the section below entitled "Calculating Costs under the Wildfire Act" for guidance on calculating fire control costs and Crown losses.

Section 25(3) requires that the DDM give the person an OTBH before making a determination under section 25(2), and, if persons do not avail themselves of the OTBH, to wait one month from the date offered for the OTBH before making a determination.

The amounts payable by a person under a section 25(2) order are a debt due to government pursuant to section 130 of the Forest Act. The DDM must notify the person of the order and the amount due, provide the person with a copy of the order and reasons for making the order, and inform the person of their right to review and appeal.

Calculating Costs under the Wildfire Act

Fire Control Costs

Section 31 of the Wildfire Regulation sets out the manner in which the government's fire control costs are calculated for the purposes of 25(1)(a) and 27(1)(b) of the Wildfire Act. The amounts in subsections 31(a) and (b) of the Wildfire Regulation must be calculated and shown separately in the Notice of Determination as each amount will be paid into separate ministry accounts.

Crown Resources

Section 30 of the Wildfire Regulation describes the manner in which the value of Crown timber, other forest land resources, grass land resources, and other property is calculated for the purposes of 25(1)(b) and 27(1)(c) of the Wildfire Act.

    Crown Timber:

Under section 30 of the Wildfire Regulation, the value of Crown timber depends on whether or not it is mature or non-mature timber. Neither the Wildfire Act nor Regulation define what is meant by mature or non-mature timber. Thus, the DDM should review the merchantability specifications in the relevant Revenue Appraisal Manual to determine whether or not the timber is mature.

The value of mature timber is calculated by ascertaining the amount of stumpage applicable to that timber under the Forest Act and assigning that amount as the dollar value for that timber. The DDM should contact Regional Revenue staff to ascertain the applicable stumpage amount.

The value of non-mature timber is the amount the DDM considers reasonable after taking into account the considerations in 30(b)(I) to (v) of the Wildfire Regulation.

    Other Forest Land Resources:

The value of other forest land resources is determined by using the calculation set out in 30(c) of the Wildfire Regulation.

    Grass Land Resources:

The value of grass land resources is determined by using the calculation set out in 30(d) of the Wildfire Regulation.

    Other Property:

The value of other property is determined by using the calculation set out in 30(e) of the Wildfire Regulation.

Notice of Determination

The DDM must provide a written rationale for his or her determination. This should be done within 180 days of the OTBH, bearing in mind relevant limitation periods, using the determination template letters and setting out:

• the DDM's authority for making the determination;
• the statutory provision(s) alleged by the investigator to have been contravened;
• the issues;
• a brief outline of the events that gave rise to the alleged contravention(s);
• the most relevant and pivotal evidence presented;
• the DDM's relevant finding of facts (i.e. the evidence that the DDM accepts, on balance, to be true);
• a consideration of the defences under section 72 of FRPA or section 29 of the Wildfire Act;
• the maximum prescribed penalties;
• the rationale for the penalty or lack of penalty, and the penalty amount, if any;
• the factors in section 71(5) of FRPA or section 27 (3) of the Wildfire Act and the role of each in relation to the penalty;
• relevant information regarding invoicing: i.e. an invoice will be sent upon the completion of all reviews and appeals; a separate stumpage invoice will be sent if timber was harvested without authority on or after November 4, 2003;
• if a person is not found to have contravened the law due to the successful application of a defence, the fact that the DDM has sent a calculation of economic benefit to the Regional Revenue Program to initiate a claim for its removal pursuant to section 106(3) of FRPA. There is no similar provision for the removal of economic benefit in the Wildfire Act;
• the right to seek a review or appeal of the determination, including the form in which the request for review or appeal must be in, and the address to which to send a request for review or appeal;
• the fact that there is a 3-week period from receipt or deemed receipt of the Notice of Determination within which to request a review or appeal; and
• the fact that a stumpage rate determination is subject to a different appeal process under the Forest Act.

In order to minimize the number of determinations subject to review or appeal, the determination letter should set out all contraventions made with respect to an incident that involve that person. Separate determination letters should not be sent out for each contravention unless the contraventions arose out of separate events.

If there is more than one person responsible, a separate determination letter must be sent to each person responsible, outlining the incident and decision as it pertains to that person.

A determination letter must be sent to a person responsible even if that person has been found not to have contravened the law.

Remediation Order

While a remediation order under section 74(1) of FRPA or section 28(1) of the Wildfire Act may arise from a contravention determination, it constitutes a separate and distinct determination. Accordingly, if a contravention determination involves remediation, a separate remediation order must accompany the Notice of Determination and specify all of the matters from (a) to (f) set out in section 74(2) of FRPA, or section 28(2) (a) to (f) of the Wildfire Act, as the case may be.

If the person(s) responsible fails to carry out the work as per the order, the Ministry may carry out the work in accordance with the requirements set out in section 74(3) of FRPA or section 28(3) of the Wildfire Act.

In addition to carrying out the work, the DDM may require the person to pay all direct and indirect costs that the government incurred in carrying out the work under section 74(3)(c) of FRPA or section 28(3)(c) of the Wildfire Act. The DDM may also make a determination to levy a penalty under section 74(3)(d) of FRPA or section 28(3)(d) of the Wildfire Act.

Correcting an Error or Clarifying a Determination

Pursuant to section 79 of FRPA and section 35 of the Wildfire Act, within 15 days after a determination is made, the person who made the determination may correct a typographical, arithmetical or other similar error, and may correct any obvious errors or omissions in the determination. Such corrections may be made with or without a hearing and on the initiative of the DDM, or at the request of the person who is the subject of the determination.

The DDM must notify the person who is the subject of the determination of any correction. The correction does not take effect until the date on which the person is notified of it.

Changing a Determination

Once a DDM has made a determination and has sent the Notice of Determination to the person who is subject to the determination, the DDM loses the authority to change it except to correct the determination as noted above.

Stay of Determination

A "stay" means that the determination and penalty do not become effective until the person who is subject to the determination has exhausted all review and appeal rights.

Section 78(1) of FRPA and section 36(1) of the Wildfire Act provide for stays of determinations that are reviewable under section 80 of FRPA or section 37 of the Wildfire Act or appealable under section 82 of FRPA or section 39 of the Wildfire Act. This captures all determinations made pursuant to sections 71 and 74 of FRPA and sections 25, 26, 27, and 28 of the Wildfire Act. These determinations are automatically stayed once they are made until the person who is the subject of the determination has no further right to have the determination reviewed or appealed.

Note that a Stop Work Order under FRPA or the Wildfire Act is not stayed.

Despite FRPA subsection 78(1) and Wildfire Act section 36(1), the Minister may order under FRPA section 78(2) or Wildfire Act section 36(2) that a determination, other than a determination to levy a penalty under FRPA section 71 or 74(3)(d) or Wildfire Act section 27 or 28 (3)(d), is not stayed or is stayed subject to conditions, on being satisfied that a stay or a stay without those conditions, as the case may be, would be contrary to the public interest.

A determination that is stayed does not constitute evidence of a previous contravention of a similar nature in a later determination for the purposes of section 71(5)(a) of FRPA or section 27(3)(a) of the Wildfire Act, until the stay is no longer in effect.

Reviewing a Determination

Section 80 of FRPA and section 37 of the Wildfire Act provide that upon the request of the person responsible, not later than three weeks after the notice of determination was given to him or her, the DDM, or another person employed in the ministry and designated in writing by the Minister, must review the determination, but only if satisfied that there is evidence that was not available at the time of the original determination. Evidence that was available but not submitted would not meet this test.

The DDM, or other person designated by the Minister, may request submissions from the investigator as to whether or not the evidence was available at the time of the original determination. The person conducting the review must give the person requesting the review an adequate opportunity to respond to the ministry's submissions.

If the person who will conduct the review is satisfied that the evidence was not available at the time of the original determination, the person(s) responsible will be given the opportunity to demonstrate how the new evidence would alter the original determination. The investigator may be given the opportunity to make submissions on that issue and the person(s) responsible must be given an opportunity to respond to the investigator's submissions.

A review under section 80 of FRPA or section 37 of the Wildfire Act is based only on the record of the original determination and the new evidence. Accordingly, the review should be limited to deciding the extent to which the new evidence would alter the original determination. It should not involve a rehearing or re-weighing of evidence presented at the original OTBH except to the extent necessary to take into account the effect of the new evidence on the original evidence.

Under section 81 of FRPA and section 38 of the Wildfire Act, the Forest Practices Board may require a review of a determination or order, upon receiving the consent of the person who is subject to the determination or order. New evidence is not a pre-condition to this kind of review. A review conducted under sections 81 or 38 may require the reviewer to take a fresh look at all the available evidence.

The person conducting a review under any of the above sections should consider the need for an oral hearing in light of all the circumstances, taking into account the submissions of the person(s) responsible, the investigator and the Forest Practices Board, and whether or not the rules of procedural fairness suggest the need for an oral hearing. Considerable weight should be given to a request for an oral hearing from the person responsible.

Appealing a Determination

Under section 82 of FRPA, a person may appeal a determination made under FRPA sections 71 and 74 (among others) directly to the Forest Appeals Commission. Under section 39 of the Wildfire Act, a person may appeal an order made under Wildfire Act sections 25, 26, 27 and 28 (among others) directly to the Forest Appeals Commission. The person may appeal either the original determination or the decision made after completion of a review of the determination, but not both.

The Commission may consider the findings of the person who made the determination or review decision (as the case may be), and either (i) confirm, vary or rescind the determination or decision, or (ii) with or without directions, refer the matter back to the person who made the determination or decision for reconsideration.

Appeals of Stumpage Rate Determinations on Unauthorized Harvest

The Forest Act was amended as of November 4, 2003, to require the payment of stumpage on Crown timber harvested without authority. Section 103(3) of the Forest Act provides that a person who cuts, damages, destroys or removes Crown timber without authorization must pay stumpage at a rate that an employee of the ministry referred to in section 105(1) of the Forest Act determines would likely have applied to the timber if rights to the timber had been granted.

The stumpage rate determination under section 105(1) is separate from the contravention determination made under FRPA and must be appealed separately under section 146(2) of the Forest Act. Where a contravention determination by a DDM may give rise to a stumpage rate determination under section 105(1), the notice of determination should indicate that separate appeal procedures apply to each determination.

For further guidance, see the discussion at page 8 of this policy under the heading "Compensation under FRPA", and also, the C&E advice bulletin of October, 2004, entitled GUIDANCE ON DEALING WITH CROWN TIMBER CUT, DAMAGED, DESTROYED OR REMOVED WITHOUT AUTHORITY.

The applicable fire centre, district or region must ensure that the determination is promptly and properly recorded in the appropriate case file in the ERA tracking system, and that the determination letter is attached to the ERA case electronically.

All correspondence relevant to any particular investigation must be recorded in the appropriate ERA file.

If a penalty is levied for a contravention, then once the period for requesting a review or appeal is over, if the person has not sought a review or appeal, the district or fire centre will initiate billing by requesting that an invoice be generated within ERA and sent to the person responsible.

ERA Administration Invoicing

If stumpage is payable on unauthorized harvest and the person has not sought an appeal, once the appeal period is over, Regional Revenue will initiate billing in the region by requesting that an invoice be generated and sent to the person responsible.

If a review has commenced, the district or fire centre will initiate billing upon completion of the review, once the period for initiating an appeal to the Forest Appeals Commission is over. ERA will not permit billing until 35 days has elapsed from the completion of the review.

If an appeal has commenced, Compliance and Enforcement Branch will initiate billing upon completion of the appeal, once the period for initiating an appeal to the BC Supreme Court is over. ERA will not permit billing until 35 days has elapsed from the completion of the appeal.

Record Keeping

All documents and correspondence relevant to every determination will be retained on the investigation file.

References

• Forest and Range Practices Act,
• Administrative Orders and Remedies Regulation ,
• Administrative Review and Appeal Procedure Regulation,
• Wildfire Act,
• Forest Act.