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Western Forest Products Limited v.Her Majesty the Queen in Right of the Province of British Columbia as represented byThe Minister of Forests and Range and Forest Appeals Commission.

Pays/Territoire
Canada
Type de cour
Nationale - cour supérieure
Date
Aoû 13, 2009
Source
UNEP, InforMEA
Nom du tribunal
Court of Appeal
Siège de la cour
Vancouver
Juge
Newbury, Low, Smith.
Numéro de référence
2009 BCCA 354
Langue
Anglais
Sujet
Questions juridiques, Forêts
Mot clé
Bois Redevances d'exploitation forestière/droits Coupe de bois/exploitation forestière
Résumé
Western Forest Products Limitedappealed a decision of the British Columbia Supreme Court allowing an appeal from decision of Forest Appeals Commission (the “Commission”) regarding the calculation of transportation costs for the purposes of assessing stumpage under the Forest Act. The decision involved an appeal by Western of a determination by the District Manager, Ministry of Forests and Range, that a log dump used by Western near Jordan River was a suitable log dump for the purposes of determining the stumpage rate applicable to timber harvested by Western near Jordan River. The Commission found that the stumpage rate should be determined based on the assumption that Western was using a log dump in Sooke rather than the one at Jordan River, despite the fact that the Jordan River log dump involved a shorter truck hauling distance and was the one that Western actually used for timber harvested in that area. The Commission held that, under the CAM, harvesting costs are to be estimated independent of the actual circumstances of a particular licensee, and are to be based upon what would be done by a notional average operator. The Province appealed the Commission’s decision to the BC Supreme Court. In British Columbia (Minister of Forests and Range) v. Forest Appeals Commission, 2007 BCSC 696, the Court held that the issue before the Commission was a question of law, and that the appropriate standard of review lay between reasonableness simpliciter and correctness, but closer to reasonableness simpliciter. Further, the Court determined that the evidence of the witnesses before the Commission appeared to be more argument and conclusion than statements of fact. Regarding the Commission’s finding that the Jordan River log dump is unsuitable for the purposes of determining the applicable stumpage rate, the Court found that the concepts of licensee neutrality and “notional average operator” are not expressly used in the CAM. The Court found the Commission’s decision unreasonable and ordered that the decision was stayed. Western appealed to the BC Court of Appeal. Writing for the Court, Newbury JA held that the judge below did not have the benefit of Dunsmuir v. New Brunswick, 2008 SCC 9, which now requires the application of a standard of reasonableness to the Commission’s decision. In particular, the Court held that the case turned on the exercise of discretion under section 4.1 of the CAM regarding whether a log dump is “unsuitable”. The Court held that this question engaged the Commission’s technical expertise in stumpage appraisal, even though the question could be characterized as one of law (i.e. the interpretation of the CAM, which is a form of subordinate legislation). Applying the standard of reasonableness, the Court found that the Commission’s decision was reasonable. Specifically, the Court held that there was evidence to support the principle of licensee neutrality which the Commission had applied, and it was not unreasonable for the Commission to have accepted that evidence, especially in light of section 148.6 of the Forest Act which permits the Commission to accept evidence even if that evidence may be inadmissible in a court. After considering the meaning of section 4.1 of the CAM, the Court held that the Commission’s decision was consistent with the scheme and tenor of the CAM, as explained by the unchallenged evidence of Western’s witnesses, and lies within the range of acceptable outcomes that were available to the Commission. Accordingly, the Court allowed Western’s appeal and ordered that the Commission’s decision was restored.
Texte intégral
COU-156915.pdf