Natural resources - Forestry - Stumpage fees; Judicial review - Appeals - Leave to appeal - Test - Compliance with legislation - Statutory interpretation

British Columbia v. Canadian National Railway

The applicant successfully sought leave to appeal an order of a justice of the Supreme Court of British Columbia dismissing its appeal from an order of the Forest Appeals Commission.

[2013] B.C.J. No. 802

2013 BCCA 185

British Columbia Court of Appeal

C.E. Hinkson J.A. (In Chambers)

April 24, 2013

The appellant, Her Majesty the Queen in Right of the Province of British Columbia (the "Province"), and the respondent, Canadian National Railway Company ("CNR"), appeared before the Forest Appeals Commission (the "Commission") in relation to a fire caused by a CNR train that destroyed 25,010.8 cubic metres of Crown timber (the "Timber").

The Wildfire Act, S.B.C. 2004, c. 31, the Wildfire Regulation, B.C. Reg. 157/2012, and the Forest Act R.S.B.C. 1996, c. 157, require a person who has damaged or destroyed Crown timber to pay to the Province an amount equal to the quantity of timber destroyed quantified at the rate of stumpage determined under the Forest Act by an appropriate government employee. In this case, an appropriate government employee assessed the value of the Timber at $254,680.38. CNR appealed that decision to the Commission.

The issue before the Commission was when to value the Timber in order to determine the appropriate stumpage rate. On the basis of the stumpage rate from July 1, 2005 to September 30, 2005, the value of the Timber was $280,299.19. On the basis of the stumpage rate from April 1, 2006 to 2009, the value of the Timber was $6,252.50. The Province argued that the quantum of compensation should be calculated using the stumpage rate that would have been applicable at the time the Timber was damaged or destroyed by the fire. CNR argued that the stumpage rate was properly based on a rate applicable to the value of the Timber on April 1, 2006, when the wood from the site would have been scaled or harvested. The Commission accepted the submissions of CNR and determined that the applicable stumpage rate payable by CNR was $6,252.50, rather than $254,680.38.

The Province appealed the Commission's decision to the Supreme Court. The appeal was dismissed. The Province sought leave to appeal.

The court referred to the criteria from Queens Plate Development Ltd. v. Vancouver - Assessor Area 9, [1987] B.C.J. No. 1573 (C.A.), for leave to appeal from a refusal to set aside the decision of a statutory tribunal:

(a) Whether the proposed appeal raises a question of general importance as to the extent of jurisdiction of the tribunal appealed from.

(b) Whether the appeal is limited to questions of law involving: (i) the application of statutory provisions; (ii) a statutory interpretation that was particularly important to the litigant; or (iii) interpretation of standard wording which appears in many statutes.

(c) Whether there was a marked difference of opinion in the decisions below and sufficient merit in the issue put forward.

(d) Whether there is some prospect of the appeal succeeding on its merits.

(e) Whether there is any clear benefit to be derived from the appeal.

(f) Whether the issue on appeal has been considered by a number of appellate bodies.

The applicant bears the onus of establishing that criteria for leave to appeal a refusal to set aside the decision of a statutory tribunal are met.

The court noted that the parties agreed that the legislative scheme, including the Forest Act, Wildfire Act, and Wildfire Regulation, creates a complete code for compensation for damage or destroyed Crown timber; therefore, the issue for the Commission was statutory interpretation. The Province's position was that the Commission committed an error of law in its statutory interpretation which resulted in a decision that was so unreasonable that no properly instructed tribunal could have reached it. In particular, the Province's argument on appeal would be that the Commission went beyond interpreting the statutory scheme and read wording into the statute that altered the plain meaning of the subsection into which the wording was read. The court held that the proposed appeal was one that involved a question of law involving the interpretation and application of statutory provisions that were important not only to the Province, but as well to those who may be obliged to reimburse the Province for damaged or destroyed Crown timber.

The court found criteria for granting leave to appeal were met. The difference between the decision of the government employee and that of the Commission was sufficient to meet the difference of opinion aspect of the Queens Plate Development criteria. The proposed appeal raised the question of whether it was open to the Commission to read the wording that it did into the statute and, if so, whether the words that the Province contended were effectively read into the provision of the statute by the Commission altered the plain meaning of the statutory wording. The issue on appeal was not shown to have been considered by other appellate bodies. The benefit to be derived from the appeal would be the clarification of the statutory scheme. The court noted that there is no need for the court on an application for leave to appeal to be convinced of the merits of the appeal, as long as there are substantial questions to be argued.

The court granted leave to appeal the order of the chambers judge dismissing the Province's appeal from the order of the Commission.