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This Act is current to January 3, 2018
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Forest Act

[RSBC 1996] CHAPTER 157

Part 11.1 — Inspections, Audits and Assessments

Division 1 — Interpretation and Application

Definitions and application

142.1  (1) In this Part:

"assessment" includes reassessment;

"forest revenue official" means a person who is designated as a forest revenue official under section 142.11 (2) and includes, other than in section 142.11, the commissioner;

"scale" has the same meaning as in section 93.

(2) This Part applies with respect to Crown timber harvested on or after March 30, 2006.

Division 2 — Inspection and Collection of Information

Officials

142.11  (1) The revenue minister may designate a person by name or title as the commissioner.

(2) The commissioner may designate a person by name or title as a forest revenue official.

(3) The commissioner may delegate, with or without conditions, any of the commissioner's powers, functions or duties under this Part to a person or a class of persons.

Entry on land or premises

142.2  (1) Subject to subsection (2), for the purpose of ensuring compliance with the provisions of this Act, the regulations or an agreement that relate to the harvesting of Crown timber, stumpage or the payment of stumpage, a forest revenue official may enter, at any reasonable time, on any land or premises and conduct an inspection or audit referred to in section 142.21.

(2) A forest revenue official may not enter a dwelling under subsection (1) unless a person who occupies the dwelling consents or a warrant authorizes the entry.

(3) If satisfied by evidence given under oath that entry into a dwelling is necessary in order to exercise the powers under section 142.21 (a), a justice may issue a warrant, subject to any conditions the justice considers appropriate, authorizing a forest revenue official to enter the dwelling.

(4) The commissioner may apply for a warrant under subsection (3) without notice to any other person.

Inspection

142.21  A forest revenue official who enters on land or premises under section 142.2 may

(a) inspect or conduct an audit of any record, or inspect any thing or any activity, that is related to information or records required to be kept by the person or to be provided to the government under this Act or an agreement entered into under this Act, and

(b) require production of and copy any record referred to in paragraph (a).

Retention of records

142.3  (1) Subject to this section, a person who is required to keep records under this Act must keep each record in a prescribed category of records for a period of 6 years after the date the record was created.

(2) If a person referred to in subsection (1) files a document under section 142.6 (3) consenting to waive section 142.6 (1) and allowing the commissioner to consider a different period in making an assessment, the person must keep all records related to the making of the assessment for the longer of the following periods:

(a) 6 years after the date the record was created;

(b) 90 days after the waiver ceases to have effect.

(3) If a person referred to in subsection (1) is assessed under section 142.42 (1), 142.51 (4) or (5) or 142.61 (1), (2) or (4), the person must keep all records related to the assessment for the longer of the following periods:

(a) 6 years after the date the record was created;

(b) the time for all appeals of the assessment has elapsed.

(4) On receipt of a written request, the commissioner may authorize the destruction of a record before the end of the period required under this section.

Delivery of records

142.31  (1) For the purpose of ensuring compliance with the provisions of this Act, the regulations or an agreement that relate to the harvesting of Crown timber, stumpage or the payment of stumpage, a forest revenue official may require a person, by serving a demand notice on that person, to provide information and produce specified records that the person is required to keep or provide to the government.

(2) On receipt of a demand notice under subsection (1), a person must prepare and deliver to the forest revenue official the information and records required within the time specified in the demand notice.

(3) A forest revenue official must not require a person under subsection (1) to provide information or records relating to a person referred to in section 142.51 (4) (a) or (b) who is unnamed, unless

(a) the commissioner first obtains the authorization of a judge under subsection (5) of this section, or

(b) the requirement under subsection (1) is imposed in the circumstances, if any, prescribed for a person who is within a prescribed class of persons.

(4) The commissioner may apply for an authorization under subsection (5) with or without notice to any other person.

(5) A judge of the Supreme Court, subject to any conditions the judge considers appropriate, may make an order authorizing the commissioner to require a person under subsection (1) to provide information or records related to an unnamed person, if satisfied by evidence given under oath that

(a) the identity of the unnamed person referred to is ascertainable, and

(b) the requirement under subsection (1) is for the purpose of verifying that the unnamed person is in compliance with any obligation under this Act.

(6) If authorization is granted under subsection (5), a copy of the court order must be served together with the demand notice referred to in subsection (1).

(7) If a person

(a) did not have notice of an application made under subsection (4), and

(b) is served with a court order granting an authorization under subsection (5),

the person, within 15 days of the service of the order, may apply to the Supreme Court for a review of the order.

(8) On hearing an application under subsection (7), a judge may

(a) cancel the authorization previously granted, if the judge is not satisfied that the conditions in subsection (5) (a) and (b) have been met, or

(b) confirm or vary the authorization, if the judge is satisfied that those conditions have been met.

(9) Nothing in subsection (1) affects solicitor-client privilege.

Obligation of a forest revenue official

142.4  A forest revenue official who, under this Division, enters on land or premises, conducts an inspection or audit or requests information or records must provide proof of identity, on the request of the person who

(a) is in possession or apparent possession of the land or premises,

(b) has apparent custody or control of the records or property being inspected or audited, or

(c) is in charge of the activity being inspected or audited.

Obligation of person on request of forest revenue official

142.41  A person who

(a) is in possession or apparent possession of land or premises entered on by a forest revenue official under this Division,

(b) has apparent custody or control of records or property being inspected or audited, or

(c) is in charge of an activity being inspected or audited,

must produce, if and as requested by the forest revenue official,

(d) proof of identity, and

(e) any information and any record required under section 142.21.

Penalty for failure to provide information

142.42  (1) If the commissioner is satisfied that a person has failed to comply with

(a) a demand notice served under section 142.31, or

(b) a request made under section 142.41 (e),

the commissioner may assess against the person, in addition to any other penalty, a penalty equal to the product obtained by multiplying $100 and the number of days during which the failure continues, to a maximum penalty of $10 000.

(2) Sections 142.7 to 142.81 apply in relation to an assessment made under subsection (1) of this section, as if an assessment made under subsection (1) of this section were an assessment made under a provision referred to in section 142.7.

(3) This section and section 142.43 apply with respect to

(a) a demand notice under section 142.31, if the demand notice is served on or after the date this section comes into force, and

(b) a request under section 142.41 (e), if the request is made on or after the date this section comes into force.

Order for compliance

142.43  (1) If the commissioner considers that a person has failed to comply with

(a) a demand notice served under section 142.31, or

(b) a request made under section 142.41 (e),

the commissioner may apply to the Supreme Court for either or both of the following:

(c) an order directing the person to comply with the demand notice or request;

(d) an order directing the directors and officers of the person to cause the person to comply with the demand notice or request.

(2) On application by the commissioner under this section, the Supreme Court may make an order it considers appropriate.

Evidence

142.5  An affidavit by a forest revenue official that states the facts necessary to establish

(a) compliance with section 142.4 by the forest revenue official and default under section 142.41 by a person to whom a request was made, or

(b) default by a person served with a demand notice under section 142.31

must be admitted as evidence in any court and is proof, in the absence of evidence to the contrary, of the facts stated.

Division 3 — Assessment of Stumpage and Imposition of Penalty and Interest

Assessment of estimated stumpage and interest

142.51  (1) If it appears to the commissioner, from an inspection or audit of any records or from other information available, that one or more of the following has occurred, the commissioner may estimate, in accordance with subsections (2) and (3), the total amount of stumpage required to be paid in respect of the Crown timber harvested:

(a) some or all of the Crown timber harvested was

(i) not scaled,

(ii) inaccurately scaled,

(iii) not reported in a scale, or

(iv) reported incorrectly in a scale;

(b) the volume or quantity or quality of some or all of the Crown timber was calculated on the basis of incorrect information provided by a cruise of the timber or on the basis of other incorrect information;

(c) the incorrect rate was applied to some or all of the Crown timber harvested;

(d) the information relating to the Crown timber harvested that is required to be provided to the government under this Act or under an agreement entered into under this Act was incomplete or inaccurate, or was not provided.

(2) In making an estimate under subsection (1), the commissioner must multiply

(a) the commissioner's estimate of the volume or quantity of the Crown timber harvested, and

(b) the sum of the commissioner's estimate of

(i) the rate of stumpage applicable to the Crown timber, and

(ii) the bonus bid, if any, offered or the bonus bid that in the opinion of the commissioner would likely have been offered in respect of the Crown timber harvested without authorization.

(3) The commissioner may make an estimate under subsection (2) (a) or (b) in a manner and form and by a procedure the commissioner considers adequate and expedient.

(4) If an estimate is made under subsection (1), the commissioner may assess

(a) the person who harvested the Crown timber, and

(b) a person who acquires, has acquired, deals in or has dealt in the Crown timber harvested

for the amount estimated under subsection (1), less the amount of stumpage that the government has previously billed for that Crown timber.

(5) After assessing a person under subsection (4), the commissioner may assess the amount of interest payable under section 130 (1) (b) on the amount assessed.

Period to be considered in making an assessment

142.6  (1) Subject to subsections (2) to (4), in making an assessment under section 142.51 (4), the commissioner must not consider or include a period greater than 6 years before the date of issue of the first notice of assessment issued with respect to that Crown timber.

(2) If an assessment under section 142.51 (4) is based on one or more events that involve wilful default or fraud by a person, the commissioner may consider and include any period in making an assessment against the person under section 142.51.

(3) If a person referred to in section 142.51 (4) (a) or (b) files a document with the commissioner in a form and containing the information required by the commissioner within a period of 6 years from the date stumpage would have been due if none of the events referred to in section 142.51 (1) (a) to (d) had occurred, consenting to waive subsection (1) of this section and to allow the commissioner in making an assessment under section 142.51 to consider a different period, the commissioner may consider any period to which the person consents.

(4) A waiver filed under subsection (3) continues in effect for 6 months after the person files with the commissioner a notice revoking the waiver in the form and containing the information required by the commissioner.

Penalty

142.61  (1) If the commissioner is satisfied that an assessment against a person under section 142.51 (4) is based on the person's wilful

(a) contravention of this Act, the regulations or an agreement entered into under this Act, or

(b) provision of a false or deceptive statement,

the commissioner may assess against the person, in addition to any other penalty, a penalty that does not exceed 100% of the assessment under section 142.51 (4).

(2) If the commissioner is satisfied that an assessment against a person under section 142.51 (4) is based on the person's contravention of this Act, the regulations or an agreement entered into under this Act, the commissioner may assess against the person, in addition to any other penalty, a penalty that does not exceed 25% of the assessment under section 142.51 (4).

(3) If the commissioner assesses a penalty under subsection (1) against a person, the commissioner may not impose a penalty under subsection (2) with respect to the same assessment against that person.

(4) After assessing a penalty against a person under subsection (1) or (2), the commissioner may assess the amount of interest payable under section 130 (1) (b) on the amount assessed.

Payment of assessed amount of stumpage

142.7  In addition to any other money required to be paid to the government in the circumstances set out in section 130 (1.1), a person assessed under section 142.51 (4) or (5) or 142.61 (1), (2) or (4) must pay to the government the amount assessed.

Notice of assessment

142.71  On making an assessment under section 142.51 (4) or (5) or 142.61 (1), (2) or (4), the commissioner must serve the person assessed with a notice of assessment that sets out the amounts assessed under section 142.51 (4) or (5) or 142.61 (1), (2) or (4), as the case may be.

Serving a notice of assessment

142.8  (1) A notice of assessment required to be served on a person under section 142.71 must be served in one of the following ways:

(a) by leaving the notice of assessment with the person;

(b) by sending the notice of assessment

(i) by ordinary mail or registered mail to the person's address,

(ii) by electronic mail to the person's electronic mail address, or

(iii) by facsimile to the person's facsimile number

as last known to the commissioner.

(2) A notice of assessment served in accordance with subsection (1) (b) is deemed to have been received on the date the notice of assessment was sent.

(3) If a person carries on business under a name or style other than the person's own name, the notice of assessment may be addressed to the name or style under which the person carries on business and, in the case of leaving the notice of assessment with a person, the notice of assessment is deemed to have been validly served if left with an adult person employed at the place of business of the addressee.

(4) If persons carry on business in partnership, the notice of assessment may be addressed to the partnership name and, in the case of leaving the notice of assessment with a person, the notice of assessment is deemed to have been validly served if left with one of the partners or left with an adult person employed at the place of business of the partnership.

(5) Proof of the receipt by a person of the notice of assessment may be established in any court by showing that the notice of assessment was sent in accordance with this section, and the burden of proof is on the person seeking to establish the fact that the notice of assessment was not received by that person.

Proof and onus

142.81  (1) Evidence that an assessment has been made under section 142.51 (4) or (5) or 142.61 (1), (2) or (4) is proof, in the absence of evidence to the contrary, that the amount assessed is due and owing in accordance with the notice of assessment referred to in section 142.71, and the onus of proving otherwise is on the person liable to pay the amount assessed.

(2) Subject to being amended, changed or varied on appeal under this Part, an amount assessed under section 142.51 (4) or (5) or 142.61 (1), (2) or (4) is valid and binding despite any error, defect or omission in the estimate or assessment or in procedure.

Division 4 — Appeals of Assessments

Appeal to revenue minister

142.9  (1) If a person disputes an assessment made under section 142.42 (1), 142.51 (4) or (5) or 142.61 (1), (2) or (4), the person or the person's agent may appeal to the revenue minister in accordance with this section.

(2) An appeal under this section may be commenced by serving a notice of appeal on the revenue minister within 90 days of the date that the notice of assessment referred to in section 142.71 is served on the appellant.

(3) The notice of appeal must

(a) be in writing,

(b) be addressed to the revenue minister in the City of Victoria, and

(c) set out clearly the reasons for the appeal and all the facts relevant to it.

(4) On receiving the notice of appeal, the revenue minister must

(a) consider the matter,

(b) affirm, amend, change or vary the assessment or penalty, and

(c) promptly notify the appellant in writing of the result of the appeal.

Appeal to court

142.91  (1) A decision of the revenue minister under section 142.9 may be appealed to the Supreme Court by way of a petition proceeding.

(2) The Supreme Court Civil Rules relating to petition proceedings apply to appeals under this section, but Rule 18-3 of those rules does not apply.

(3) A petition commencing an appeal under this section must be filed in the court registry within 90 days of the date of the revenue minister's notification of the result of the appeal.

(4) Within 14 days of the filing of a petition under subsection (3), the petition must be served on the government in accordance with section 8 of the Crown Proceeding Act and in the petition the government must be designated "Her Majesty the Queen in right of the Province of British Columbia".

(5) An appeal under this section is a new hearing that is not limited to the evidence and issues that were before the revenue minister.

(6) The Supreme Court may

(a) dismiss the appeal,

(b) allow the appeal,

(c) vary the decision from which the appeal is made, or

(d) refer the decision back to the commissioner for reconsideration.

(7) An appeal lies from a decision of the Supreme Court to the Court of Appeal with leave of a justice of the Court of Appeal.

Affect of pending appeals

142.92  Neither the serving of a notice of appeal by a person nor a delay in the hearing of the appeal

(a) affects the date of payment, the interest or penalties or the liability for payment in respect of the assessment that is the subject matter of the appeal, or

(b) delays collection of the assessment.

Part 12 does not apply

142.921  Part 12 does not apply to an appeal under this Division.

Division 5 — General

Confidentiality

142.93  (1) A forest revenue official who has custody of or control over information or records provided to the government under this Act must not disclose the information or records to any other person except

(a) for the purposes of administering or enforcing this Act, a taxation enactment or an Act administered by the minister responsible for the administration of Part 2 of this Act,

(b) in court proceedings,

(c) as provided in, or ordered under, section 239 or 242 of the Family Law Act or section 8.2 or 9 of the Family Maintenance Enforcement Act, or

(d) under an agreement that

(i) is between the government of British Columbia and another government,

(ii) relates to the administration or enforcement of this Act, a taxation enactment or an Act administered by the minister responsible for the administration of Part 2 of this Act, and

(iii) provides for the disclosure of information and records to, and the exchange of similar information and records with, that other government.

(2) A person who contravenes subsection (1) commits an offence and is liable to a fine of not more than $2 000.

Regulations

142.94  Without limiting Division 3 of Part 12, the Lieutenant Governor in Council may make regulations as follows:

(a) respecting inspections and audits conducted by forest revenue officials;

(b) respecting the conduct of appeals to the revenue minister under this Part;

(c) prescribing one or more categories of records for the purpose of section 142.3;

(d) prescribing a class of persons and circumstances for the purpose of section 142.31 (3);

(e) respecting assessments under this Part;

(f) requiring a person to keep records or types of records for the purposes of this Act or a provision of this Act.

Contents | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 11.1 | Part 12 | Part 13 | Part 14