Environmental Appeal Board

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1 Environmental Appeal Board APPEAL NO. 96/20 - WILDLIFE In the matter of an appeal under section 103 of the Wildlife Act, S.B.C. 1982, c.57. BETWEEN: Terry Shendruk APPELLANT AND: Deputy Director of Wildlife RESPONDENT BEFORE: HEARING: A Panel of the Environmental Appeal Board Toby Vigod, Chair By Way of Written Submissions Concluded January 27, 1997 APPEAL This is an appeal by Terry Shendruk from the August 21, 1996 decision of the Deputy Director of Wildlife suspending Mr. Shendruk s guide outfitter licence and certificate for a period of one year commencing November 1, The authority to hear this appeal is found in section 103 of the Wildlife Act (the Act ) and section 11 of the Environment Management Act. BACKGROUND Mr. Shendruk is a dog handler for the RCMP in Prince George and has operated a guide outfitting operation for approximately 10 years, holding both a guide outfitter certificate and licence. In 1995, Mr. Shendruk booked a number of hunts to take place between September 1995 and October 1995 in his licenced area. In August, 1995, Mr. Shendruk was unexpectedly called out of town to conduct dog training in Innisfail, Alberta. He returned to Prince George in November of that year. In his absence, his assistant guides handled the hunts. Mr. Shendruk kept in contact with his guides throughout the hunts, speaking with them every couple of days. Assistant guides Paul McIntosh and Kevin Bowler guided three hunters for goat and black bear during Mr. Shendruk s absence in September Three goats and a black bear were killed during the hunt. The assistant guides took the goats to the Ministry of Environment, Lands and Parks office in Williams Lake for a compulsory inspection. At that time it was determined that Mr. Shendruk had neglected to complete the Report and Declaration of Guide and Outfitter forms for each of the hunters. Three violation tickets were issued pursuant to section 55(2) of the Wildlife Act for failing to complete, sign, give and deliver guide outfitter declarations. Mr. Shendruk did not contest the violations and therefore was deemed guilty.

2 APPEAL NO. 96/20 Page 2 In the spring of 1996, it was brought to the Regional Manager s attention that Mr. Shendruk had not been in his guide area during the time his assistant guides were guiding for game which is a contravention of section 49(3) of the Wildlife Act. As a result of the contraventions of section 55(2) and the alleged contravention of section 49(3), the Regional Manager decided that a hearing pursuant to section 62 of the Act was necessary to determine whether Mr. Shendruk should continue to enjoy the privileges afforded him by his guide outfitter licence and certificate. The section 62 hearing was held on June 27, 1996 by William Munro, Deputy Director, Wildlife Branch. In his August 21, 1996 decision, the Deputy Director found Mr. Shendruk had improperly handled the three guide outfitter declarations. He held that although this was a serious offence, it was not intentional and no harm to the resource came of it, therefore, he did not take licence action against Mr. Shendruk on this issue. With regard to Mr. Shendruk s alleged contravention of section 49(3), the Deputy Director found that Mr. Shendruk was not in his guiding area during any of the times his assistant guides were guiding hunters. The Deputy Director states that this is a serious offence and that [a]s a guide outfitter of several years standing [Mr. Shendruk] should have known the law. As a result of this finding, the Deputy Director held that Mr. Shendruk could obtain a guide outfitter licence for the 1996/97 season but that the licence would be suspended for a period of one year commencing November 1, He also suspended Mr. Shendruk s guide outfitter certificate for the period from November 1, 1996 to October 31, Mr. Shendruk appealed the Deputy Director s decision to the Environmental Appeal Board. Mr. Shendruk does not take issue with the contraventions of section 55(2), the finding that he contravened section 49(3) or the issuance of the suspension. He seeks only to have the length of the suspension shortened from one year to six months. This hearing before the Environmental Appeal Board was conducted by way of written submissions. RELEVANT LEGISLATION Sections of the Wildlife Act relevant to this appeal and the issues surrounding it are as follows: Compulsory guide outfitter licence 49 (3) A guide outfitter shall be present in his guide area during substantially all the times when his assistant guides are guiding for game. Guide reports 55 (1) A guide outfitter shall

3 APPEAL NO. 96/20 Page 3 (a) immediately after a hunt is concluded, complete and sign a guide report in the form specified by the director, (b) immediately after signing the completed guide report, give a copy of the report to each hunter guided on the hunt, and (c) within 10 days after the hunt is concluded, deliver the original of the completed guide report to the regional manager. (2) A guide outfitter who contravenes subsection (1) commits an offence. Action if conditions of licence or certificate not fulfilled 62 (1) Where a person who holds a guide outfitter's licence or guide outfitter's certificate, assistant guide licence or another licence to guide for game, angling guide licence, assistant angling guide licence, trapping licence or fur trader's licence is convicted of an offence under this Act or the regulations or does not comply with the conditions contained in his licence or certificate or for another cause that the regional manager considers reasonable, the regional manager may conduct a hearing to determine whether the person should continue to enjoy the privileges afforded him by the licence or certificate and may do any one or more of the following: (a) suspend, cancel or refuse to renew the person's licence or certificate; (b) amend the licence or certificate to specify a different area in which the person is authorized to operate; (c) in the case of a guide outfitter, amend the licence to further limit the numbers, age and sex of game in respect of which he may guide; (d) amend the licence or certificate to require the person to meet other restrictions considered appropriate; (e) in the case of an angling guide, reduce or cancel an angler day quota attached to that person's licence. (2) A person, in respect of whose licence or certificate a hearing is to be held, shall be given reasonable notice of the time and place for the hearing and the provisions of section 103 apply. (3) A hearing conducted under subsection (1) shall be held in public unless the minister orders that the hearing be held in private. EVIDENCE AND ARGUMENTS In his submissions the Appellant, Mr. Shendruk, contends that during the investigation of his offences by the Wildlife Branch he was unable to obtain a guide outfitter licence for the 1996/97 season and therefore had to cancel his hunts scheduled for the spring of The Appellant submits that this information was

4 APPEAL NO. 96/20 Page 4 not provided to the Deputy Director at the hearing below, and therefore, the Deputy Director was unable to take into consideration that the Appellant had already missed his spring hunts. The Appellant submits that the length of the suspension for one year, commencing in November 1996, is excessive under the circumstances. He argues that the Board should take into the fact that he did not have a licence during the Spring of 1996 when considering the length of the formal suspension and reduce the formal suspension from one year to six months. With regard to the Appellants submission that he was unable to obtain a licence during the investigation, the Respondent submits that there is no record that the Appellant was ever told that he could not apply for or would be refused a guide outfitter licence. The Respondent further submits that the Appellant applied for and received a guide outfitter licence in August of 1996 and that he subsequently guided hunters in his licenced territory. In a letter to the Respondent dated September 19, 1996, the Regional Manager states that there is no record that Mr. Shendruk was turned down for his licence or that he even applied until August 27, He goes on to say that the Regional Manager is the only person with the authority to issue a licence and that he did not advise the Appellant that he could not apply for his guide outfitter licence. The Respondent maintains that in coming to his decision the Deputy Director took into consideration all the relevant legislation, regulations, policy and written and oral evidence before him. He further maintains that the Deputy Director did not exceed his jurisdiction and that his decision was made in accordance with the rules of natural justice. DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all of the relevant documentary evidence submitted to it, whether or not it has been specifically reiterated here. The Supreme Court of British Columbia has provided guidance on the Board s authority to consider appeals under the Wildlife Act. According to Madame Justice Huddart, the Board s (and thus this Panel s) duty on appeal is to determine whether the Deputy Director properly exercised his discretion, that is to say bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally Olson v.walker, [1989] No Duncan Registry. Therefore, this Panel must decide whether in making his decision to suspend the Appellants guide outfitter licence and certificate for one year the Deputy Director properly exercised his discretion. The Panel finds that the Deputy Director took into consideration all of the relevant legislation, policy and evidence before him and was not influence by irrelevant considerations.

5 APPEAL NO. 96/20 Page 5 The Deputy Director considered the fact that although the contraventions of section 55(2) of the Act were serious, they were not intentional. As a result he did not take these contraventions into account in determining the suspension. In his decision to suspend the Appellant s guide outfitter licence and certificate, the Deputy Director considered the purpose and intent of sections 49(3). He held that the law is in place to ensure client safety, lawful and ethical hunting, and responsible guiding. He found that the Appellant s absence during the hunts was a serious violation and that an experienced guide outfitter, such as the Appellant, should have known the law. He went on to say that while there were no resource impacts as a result of the Appellant s absence, a significant amount of staff time was involved in investigating the matter. The Panel finds that the Deputy Directors decision was not arbitrary or illegal. The Deputy Director made a decision which was fair and just. He acted in good faith and the suspension was not unreasonable under the circumstances. The Appellant does not disagree that the contravention of section 49(3) warrants a suspension and the Panel agrees. The sole issue before this Panel then, is whether the length of the suspension is reasonable. The Appellant submits that it is not because he did not have the benefit of holding a licence for six months during the Spring of 1996, prior to the commencement of his suspension. He argues that this voluntary suspension should be considered in determining whether the length of the formal suspension is reasonable. He submits that the suspension should be reduced by six months for what amounts to time served. The Panel disagrees. The evidence clearly shows that the Appellant did not apply for a guide outfitter licence in the Spring of 1996 and that there is nothing to indicate that the Regional Manager would not have issued a licence had the Appellant applied for one. The Panel also notes that in deciding the commencement of the suspension the Deputy Director considered the fact that the Appellant had booked hunters for the fall 1996 season and that it would be unfair to cancel these hunts at such a late date. The Panel finds that the Deputy Director has the knowledge and expertise to determine what a reasonable length of time should be under the circumstances. It is therefore, the decision of this Panel that the Deputy Director did properly exercise his discretion in issuing the suspension of one year. The appeal is dismissed. Toby Vigod, Chair Environmental Appeal Board February 21, 1997

Environmental Appeal Board

Environmental Appeal Board APPEAL NO. 92/23 WILDLIFE In the matter of appeal under s103 Wildlife Act, SBC Chap. 57 Index Chap. 433.1, 1982 BETWEEN Byron Dalziel APPELLANT AND Deputy Director of Wildlife