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FOREST AND RANGE PRACTICES ACT AND DUE DILIGENCEThe Forest and Range Practices Act (which has received the nickname pronounced "Firpa") came into force January 31, 2004. The purpose of the statute was, according to government, to "streamline the Forest Practices Code to establish a workable, results-based code, with tough penalties for non-compliance." In my experience, government efforts at enforcing the Code have always been addressed at the licencee level. It's not that government was unable to deal directly with contractors-it simply elected not to. Administrative penalties, remediation orders, and charges before the Court were always aimed at the licencee. In fact, the contractor involved in the incident was usually instructed by its licencee to remain silent. The contractor had no right to participate in any of the enforcement proceedings. (In law, the contractor lacked "standing".) All of this was in spite of the fact that the contractor's written agreement would usually provide that the contractor was to fully reimburse the licencee for any penalties or other costs arising out of the enforcement proceedings, including the licencee's legal fees. (This arrangement is particularly unfair where a first-offence contractor is made to bear the penalty of a third-offence licencee.) In the vast majority of cases, violations of the Code resulted in "administrative penalties". Following an investigation, a penalty was issued by a Ministry official. Opportunities existed to appeal that penalty to the Forest Appeals Commission. In the most blatant of violations, charges were laid before the Court instead of, or in addition to, administrative penalties. One can see that a Code violation could lead to a lot of finger pointing. Imagine, for example, that trees were wrongly felled in a riparian area. The licencee may blame the contractor. The contractor may blame his falling subcontractor. There may be arguments about the clarity of the maps, the adequacy of the ribboning, or the quality of instruction given. When faced with an administrative penalty under the Code, the licencee was prevented from raising a defence of due diligence. In other words, the licencee could not argue that it had taken reasonable care at preventing the offence from occurring, and that the offence was entirely the fault and responsibility of the contractor. Under FRPA, the circumstances have changed. When confronted with an administrative penalty, it is now open for a licencee to raise a defence of due diligence. Faced with the prospect of such a defence, enforcement officials may decide to impose the administrative penalty upon the contractor. Now, because the contractor may also raise a defence of due diligence it is entirely possible that the Ministry will take aim at the subcontractor or even (at least in theory) the contractor's or subcontractor's workers. Should contractors, subcontractors, and workers be alarmed? I would say "no". I suspect that, for the most part, it will be business as usual for enforcement personnel. When a violation occurs it will usually be dealt with at the licencee level. I would expect that penalties at the contractor, subcontractor, or worker level would be relatively infrequent. What should contractors, subcontractors, and forest workers do to deal with this? The simple answer is to "be careful". In other words, practice due diligence. Practicing due diligence means that you make sure that your instructions are clear. If you are not clear on what to do or whether it is legal, seek clarification. Your best tools for this are a fax machine and a notebook. When push comes to shove, written evidence is better than uncertain recollections. In addition, due diligence is about training, education, and systems to avoid infractions. I am talking now about tailgate meetings, training courses, policy manuals, and a system of progressive discipline for violations by those under your control. You want to be following the best practices in the industry. As before, in addition to imposing a fine it is also possible for the Ministry to issue a remediation order. Once can imagine cases, for example in a road building context, where the cost of a remediation order could be huge. Contractors can take comfort in knowing that remediation orders can only be made against licencees, not against contractors or others. (Again, though, your contract might make you ultimately responsible for that in any event.) I want to leave the contractors with one last thought. Many of you are participating in the B.C. Timber Sales Program. While in that program you are the licencee, and the buck stops with you. In the case of any FRPA violation, government will be looking to you first and foremost to pay the penalty and comply with any remediation order. Even more than ever it is important for you to practice due diligence. John Drayton is a lawyer with Gibraltar Law Group who practices in the areas of forestry and motor transport law. Back to Articles Index
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