Forest Appeals Commission

Transcription

1 Forest Appeals Commission Fourth Floor 747 Fort Street Victoria British Columbia V8W 3E9 Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: DECISION NO WFA-001(a) In the matter of an appeal under the Wildfire Act, R.S.B.C. 1996, c BETWEEN: Gary Andrew Brammer APPELLANT AND: Government of British Columbia RESPONDENT BEFORE: DATE: APPEARING: A Panel of the Forest Appeals Commission Alan Andison, Chair Conducted by way of written submissions concluding on May 31, 2016 For the Appellant: Gary Brammer For the Respondent: Pamela Manhas, Counsel APPLICATION FOR EXTENSION OF TIME TO APPEAL [1] On March 22, 2016, the Commission received a Notice of Appeal filed by Gary Brammer against a determination issued by Tony Fiala, Deputy Fire Centre Manager, Prince George Fire Centre (the Manager ), Ministry of Forests, Lands and Natural Resource Operations (the Ministry ). In his determination dated May 12, 2015, the Manager found that Mr. Brammer had contravened sections 2, 3(1) and 3(2) of the Wildfire Act. Specifically, the Manager found that on May 18, 2012, Mr. Brammer and Yves Leduc detonated an explosive charge on private forest land, resulting in a fireball and hot metal shards that ignited several spot fires contrary to section 3(1)(b) of the Wildfire Act. In addition, the Manager found that Mr. Brammer and Mr. Leduc did not immediately extinguish the fire contrary to section 3(2)(b) of the Wildfire Act, and that they did not immediately report the fire contrary to section 2 of the Wildfire Act. The Manager found that none of the statutory defences in the Wildfire Act applied. The Manager levied an administrative penalty of $1,000 against Mr. Brammer for the contraventions. The Manager also ordered Mr. Brammer and Mr. Leduc to pay the government $48, as compensation for its fire suppression costs. [2] In his Notice of Appeal, Mr. Brammer requested an extension of time to file the appeal. When the determination was issued, the statutory appeal period was three weeks from the date the determination was issued. In this case, the appeal was filed over nine months after the determination was issued. Under section 24(2) of the Administrative Tribunals Act, the Commission has the authority to extend the time to file an appeal, even if the time to file has expired, if satisfied that special circumstances exist.

2 DECISION NO WFA-001(a) 2 [3] In a letter dated March 30, 2016, the Commission asked for submissions on whether Mr. Brammer s request for extension of time should be granted. [4] The Respondent opposes the application for an extension of time. ISSUE Whether there are special circumstances in this case, such that the Commission should grant an extension of time to file the appeal. LEGISLATION [5] Section 24(2) of the Administrative Tribunals Act applies to the Commission pursuant to section 40.1 of the Wildfire Act together with section of the Forest and Range Practices Act. Administrative Tribunals Act Time limit for appeals 24 (1) A notice of appeal respecting a decision must be filed within 30 days of the decision being appealed, unless the tribunal's enabling Act provides otherwise. (2) Despite subsection (1), the tribunal may extend the time to file a notice of appeal, even if the time to file has expired, if satisfied that special circumstances exist. [underlining added] DISCUSSION AND ANALYSIS Whether there are special circumstances in this case, such the Commission should grant an extension of time to file the appeal. The parties submissions [6] In his Notice of Appeal, Mr. Brammer states, in part, as follows:... This appeal was originally filed on May 18, I was advised by Mr. Larry Bowdige [of the Ministry] on March 19, 2016 that the original request is not on file and has either been lost or was never received. Mr. Bowdige advised that I send another Request for Appeal. Please note that, over the past ten months, I have had conversations with approximately ten people from both B.C. Ministry of Finance and B.C. Ministry of Forests about the costs associated with the decision. In every conversation I said that I was waiting to hear about my appeal before moving forward. I was instructed in each conversation that I was to wait for the appeal date or I [was] forwarded on to a new ministry representative.

3 DECISION NO WFA-001(a) 3 In addition to these conversations, I received a Statement of Account on October 9, 2015, showing I had a $0 balance on the account. [7] The Respondent submits that the evidence neither supports Mr. Brammer s assertions nor presents any special circumstances which would justify an extension of time. The Respondent further submits that Mr. Brammer s evidence consists of an unsworn, undetailed version of events that amounts to an assertion that he filed a document intending to commence an appeal with some unspecified body on May 18, 2015, and then did nothing about it until mid-march The Respondent submits that the interests of fairness favour dismissing the application for an extension on the basis that no special circumstances exist. [8] The Respondent provided two affidavits in support of its submissions. The affidavits were sworn by Laurence Bowdige, a Recovery Officer with the Ministry s Wildfire Service, and Cindy Ward, a legal secretary with the Ministry of Justice. [9] Specifically, the Respondent submits that the Manager s determination was sent to Mr. Brammer s home address via registered mail, and he signed for the package on May 20, In that regard, the Respondent provided a copy of a Canada Post document that is attached as an exhibit to Ms. Ward s affidavit. The Canada Post document indicates that gary brammer signed for a package from Wildfire Management Branch on the morning of May 20, [10] The Respondent submits that four government employees have confirmed that they had contact with Mr. Brammer regarding the determination: Mr. Fiala, the Manager; Mr. Bowdige; Larry McLean, a Revenue Operations Analyst with the Ministry of Finance; and, Lindsay Morris, a Collections Officer with the Ministry of Finance. The Respondent summarized communications with Mr. Brammer, as follows: Approximately two weeks after May 12, 2015 (the date of the determination), Mr. Brammer called Mr. Fiala, the Manager, to inquire about payment of the government s fire suppression costs. Mr. Brammer said nothing about an appeal, and Mr. Fiala referred him to information in the determination regarding payment. On October 21, 2015, Mr. Bowdige left a voice mail message for Mr. Brammer advising of an administrative error related to invoices for the fire suppression costs. On October 21, 2015, Mr. Brammer inquired with the Ministry of Finance about the fire suppression costs, and he spoke to Mr. McLean on the telephone. Mr. Brammer told Mr. McLean he had sent a letter to appeal the fire suppression costs a few months earlier but had not heard back. Mr. McLean s notes from the telephone call indicate that Mr. Brammer said he would get a hold of the appeals people. On March 18, 2016, Mr. Brammer spoke with Ms. Morris of the Ministry of Finance about the fire suppression costs. Mr. Brammer referred to an appeal he had filed one and a half years earlier, in respect of which he had heard nothing. Ms. Morris advised him to contact the BC Wildfire Service about his appeal, and he said he would contact Mr. Bowdige.

4 DECISION NO WFA-001(a) 4 On March 18, 2016, Mr. Brammer telephoned Mr. Bowdige and advised that he had sent a request for an appeal within 48 hours of receiving the determination. Mr. Brammer did not remember where he had sent that request. Mr. Bowdige suggested that it would have been the Commission. That same day, Mr. Bowdige contacted the Commission s office, and then advised Mr. Brammer of the steps he could take to file his appeal and request an extension of time. [11] The Respondent submits that none of those four government employees received anything from Mr. Brammer purporting to be a Notice of Appeal or something similar. In support of those submissions, the Respondent relies on Mr. Bowdige s affidavit. [12] The Respondent also submits that four other government employees who had some involvement in Mr. Brammer s matter before and just following the issuance of the determination have confirmed that they had no contact with Mr. Brammer about an appeal, as detailed in Mr. Bowdige s affidavit. [13] In addition, the Respondent notes that the Commission s Procedure Manual states that the Commission will consider whether fairness requires an extension, taking into account the following factors: the length of the delay; the adequacy of the reasons for the delay; the prejudice to those affected by the delay; and any environmental impacts that may result from an extension. [14] Regarding the length of the delay, the Respondent submits that the delay of approximately 9.5 months is extensive. [15] Regarding the reasons for the delay, the Respondent submits that, contrary to Mr. Brammer s assertion that he filed an appeal on May 18, 2015, he could not have done so because he did not receive the determination letter until May 20, The Respondent also submits that in a conversation with Mr. Bowdige, Mr. Brammer said that he filed an appeal within 48 hours of receiving the determination. In any event, the Respondent argues that Mr. Brammer has produced nothing that would tend to prove that he drafted an appeal document, sent the document, or to where it was sent (before March 2016). The Respondent maintains that the determination letter contains explicit instructions on how and when to file an appeal. If Mr. Brammer had followed those instructions, he would have received an acknowledgement from the Commission regarding his appeal, but he heard nothing. The Respondent submits that this implies that Mr. Brammer did not follow the steps for filing an appeal. Alternatively, there may have been some sort of error while his Notice of Appeal was in transit, such as a delivery error. If so, it was incumbent on Mr. Brammer to make inquiries about his appeal, but he did not do so. It was not until March 2016, when Mr. Bowdige contacted the Commission and then told Mr. Brammer how to file an appeal and request an extension, that Mr. Brammer inquired about an appeal. The Respondent argues that it is unreasonable to wait passively for over nine months without making an effort to inquire about his appeal. The Respondent further argues that the evidence

5 DECISION NO WFA-001(a) 5 does not support Mr. Brammer s claim that government employees instructed him to wait for his appeal. [16] Finally, the Respondent submits that, given the length of the delay, some prejudice to the Province should be presumed by virtue of the passage of time, most notably because witnesses memories fade and the Commission conducts appeal hearings as a new hearing of the matter. The Respondent submits that the final factor, whether environmental impacts may result from an extension, does not apply. [17] In reply, Mr. Brammer submits that he spoke with four additional government employees who are not identified in the Respondent s submissions. He described the nature of his communications with those employees, and he provided their names and phone numbers. Mr. Brammer s communications with those employees were primarily regarding billing and collections for the fire suppression costs, but he submits that he mentioned his appeal to at least some of them. He submits that he did follow up and he was told to wait. In addition, Mr. Brammer submits that he believes his appeal was sent to the department at the bottom of the determination letter; i.e., the Ministry. He submits that: I believed that these contacts were connected to that department [Ministry of Forests, Lands and Natural Resource Operations]. Therefore, when repeatedly told to wait for an answer on the appeal, I believed I was doing the right thing. [18] Mr. Brammer denies that he is attempting to delay the appeal process. He submits that the appeal is important to him, in order to clear up untrue statements and judgments that have been made about his character, among other things. The Panel s findings [19] The Panel finds that special circumstances is not defined in the Administrative Tribunals Act. However, in the context of an administrative appeal under forestry legislation, the Commission finds that special circumstances may include the reasons for the delay and the degree to which the appellant was (or was not) diligent in pursuing the matter. If the delay was caused by the appellant, the Commission may consider whether there were extenuating circumstances. The Commission may also consider the consequences to the appellant if an extension is denied and the appellant loses their right of appeal, as well as the consequences to the Respondent s interests and the environment if an extension is granted. [20] The Commission s power to extend the time to appeal should not be exercised lightly. The purpose of an appeal period is to bring finality to a proceeding. Appellants are expected to be diligent in pursuing an appeal. This is especially so under this legislation where an appeal acts as a stay. With the passage of time, the risk of prejudice to the Respondent s interests increases. For example, as more time passes, granting an extension to file an appeal may result in the Respondent being delayed in recovering costs it has incurred or being compensated for losses to Crown resources. In addition, as time passes, it may become more difficult for all parties to gather reliable evidence. This is why an extension will only be granted in special circumstances.

6 DECISION NO WFA-001(a) 6 [21] In response to the length of delay in commencing his appeal, Mr. Brammer submits that he originally filed his appeal on May 18, However, the evidence is clear that Mr. Brammer did not receive the registered letter containing the determination until May 20, Thus, the Panel finds that the earliest he could have appealed would have been on May 20, However, the Commission has no record of receiving a Notice of Appeal from Mr. Brammer before March 22, The Commission first became aware of Mr. Brammer s intention to appeal the determination on March 18, 2016, when Mr. Bowdige of the Ministry contacted the Commission regarding Mr. Brammer s circumstances. The Commission received Mr. Brammer s Notice of Appeal four days later on March 22, Prior to March 18, 2016, the Commission has no record of receiving any documents or communication indicating that Mr. Brammer intended to file an appeal. Based on the evidence, it is also clear that the Ministry has no record of receiving a Notice of Appeal, or any other document stating an intention to file an appeal, from Mr. Brammer. Thus, the Panel finds that an appeal was not properly filed by Mr. Brammer until March 22, 2016, which is approximately 9.5 months after he received the determination. The Panel finds that a delay of this length is substantial. [22] Regarding the reasons for the delay, it appears that either Mr. Brammer did not attempt to file an appeal before March 22, 2016, or alternatively, he did request an appeal sometime in May 2015 but his request was not received by either the Commission, which is where it should have been sent, or a Ministry office, which is where Mr. Brammer believes he sent it. The Panel has considered whether the Manager s determination letter provided clear instructions on how to file an appeal. The letter clearly states that a request for an appeal must be made in writing and must be sent to the Commission s office no later than three weeks after the date this notice of determination is given or delivered to you [emphasis in the original letter]. The Panel finds that the determination letter is very clear about how to initiate an appeal, and the deadline for doing so. The letter also clearly distinguishes between the processes for requesting a review (conducted by the Ministry) versus an appeal to the Commission. Although it is possible that Mr. Brammer did not follow the instructions on the how to file an appeal, the Panel finds that this would not have been due to a lack of clarity in the instructions in the determination letter. [23] Both parties evidence indicates that, during Mr. Brammer s communications with various government employees after the determination was issued, he stated on several occasions that he had requested an appeal. According to Mr. Brammer, he believed that the government employees who he had communicated with were connected to the Ministry, which is where he believes he sent his request for an appeal, and he thought he was following up regarding the costs he owed and his appeal against those costs. In these circumstances, the Panel finds that it is possible that Mr. Brammer mistakenly sent his request for an appeal to a Ministry office rather than the Commission s office, and his request was not received due to an unknown error that occurred during the delivery process. However, the Panel is concerned that Mr. Brammer has provided no evidence, such as a copy of the notice of appeal that he allegedly sent to the Ministry, to support his assertion that he sent a notice of appeal to the Ministry. The Panel is also concerned that he initially claimed to have sent this notice on May 18, 2016, but the Respondent s evidence

7 DECISION NO WFA-001(a) 7 shows that he could not have done so because he did not receive the determination letter until May 20, [24] The Respondent argues that Mr. Brammer should have been more diligent in following up on the status of the appeal he believed he had filed, and it was unreasonable for him to simply wait for over nine months without hearing anything about the status of his appeal. In contrast, Mr. Brammer asserts that he believed that the government employees he communicated with from mid-2015 to March 2016 were connected to the Ministry, and he claims that the government employees he spoke with told him to wait for an answer on the appeal. [25] The Panel finds that both parties evidence indicates that, until sometime in mid-october 2015, there was confusion about how much money Mr. Brammer owed the government as a result of the determination. Mr. McLean s notes indicate that on October 20, 2015, Mr. Brammer telephoned to inquire about why he kept getting invoices that were then cancelled, followed by invoices for the same amount. Mr. McLean s notes also indicate that Mr. McLean telephoned Mr. Bowdige that same day, and was advised that there was a problem with a government system, and Mr. Bowdige would call Mr. Brammer. Mr. Brammer stated to various government employees that he had requested an appeal but had not heard anything about it. For example, on October 21, 2015, Mr. Brammer spoke with Mr. McLean regarding invoices for the fire suppression costs. Mr. McLean s notes state that, during that conversation, Mr. Brammer said he sent a letter to appeal the debit a few months ago and has not heard back. Mr. McLean told Mr. Brammer to talk to the people he sent the letter to. Mr. McLean s notes further state that Mr. Brammer was very upset and said he has no money to pay but will get a hold of the appeals people. Mr. Brammer submits that he talked to billing staff at the end of October, and was directed back to the Manager, who told him to wait for contact from Kathleen Werstiuk. [26] The Panel finds that Mr. Brammer s inquiries were focused on the invoices he had received. He did not inquire about the appeal he had allegedly filed. The government staff that Mr. Brammer spoke with accepted his assertion that he had filed an appeal, but they never confirmed or denied receipt of an appeal from him. He did not ask them for information about his appeal, or whether it had been received. Dealing with appeals was not the role of the staff he spoke with, and they did not have direct access to information about whether a particular appeal had been filed. In this case, the Panel finds that Mr. Brammer was diligent in inquiring about the invoices he was receiving, yet he made no inquiries about the status of his appeal, despite the fact that he had not even received an acknowledgement of the appeal. This shows that Mr. Brammer was capable of being diligent regarding matters that affected him, but he was not diligent in following up on the appeal he had allegedly filed. The Panel finds that Mr. Brammer failed to make reasonable inquiries about the appeal he claims to have filed. [27] The Panel finds that Mr. Brammer has provided no reasonable explanation for the delay in filing his appeal. The Panel finds that the most likely scenario is that Mr. Brammer never filed the appeal in May 2015, as even he does not have a record or copy of it, but that he may have intended to do so. By the time he finally filed the appeal, it was well out of time.

8 DECISION NO WFA-001(a) 8 [28] The Panel has also considered that denying an extension of time will have significant financial consequences for Mr. Brammer. He will lose his right to appeal the penalty and fire suppression costs that he has been ordered to pay. Given the amount that Mr. Brammer has been ordered to pay, and his inability to pay the amount owing, the Panel finds that denying an extension of time may cause prejudice to his financial interests. However, Mr. Brammer s circumstances are not special insofar as orders to pay fire suppression costs can often involve substantial amounts of money. It is not unusual for individuals or companies to face difficulty in paying such orders. The government has chosen to create a statutory scheme in which individuals who cause or contribute to a wildfire may be liable for the government s costs to fight the fire. The government has also provided those individuals with a right of appeal to avoid orders for the payment of fire suppression costs where such orders are unwarranted. It is reasonable to expect that appellants who have been ordered to pay a substantial amount of money will be diligent in pursuing their right of appeal unless special circumstances exist. In the present case, there is no evidence that Mr. Brammer experienced any special or extenuating circumstances which would have prevented him from being diligent in pursuing his right of appeal. It is insufficient to simply state that an appeal was filed, without providing any evidence of actually having done so. [29] In the present case, the length of the delay is significant, and the Panel finds that there are no special circumstances which would warrant exercising the Commission s discretion to grant an extension of time to file the appeal. DECISION [30] For the reasons provided above, the application for an extension of time to file the appeal is denied. The appeal is dismissed for being filed after the expiry of the statutory appeal period. Alan Andison Alan Andison, Chair Forest Appeals Commission June 8, 2016