Environmental Appeal Board

Environmental Appeal Board APPEAL NO. 93/25 - WILDLIFE In the matter of appeal under section 103 Wildlife Act, S.B.C. 1982, c.57. BETWEEN: R. Lynn Ross APPELLANT AND: Deputy Director Of Wildlife RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Katherine Hough, Panel Chair Elizabeth Keay, Member Harry Higgins, Member DATE OF HEARING: October 23 & October 24, 1996 PLACE OF HEARING: Fort St. John, B.C. APPEARING: For the Appellant: David Jenkins, Q.C., Counsel For the Respondent: J. McBride, Counsel APPEAL This was an appeal against the decision of Deputy Director, Mr. William Munro, cancelling Mr. Ross s guide outfitter certificate and suspending his guide outfitter licence. The authority for the Panel of the Environmental Appeal Board to hear this appeal is found in section 11 of the Environment Management Act and section 103 of the Wildlife Act. BACKGROUND Mr. Lynn Ross ( Ross ) is a guide outfitter with more than 40 years of experience whose territory was located north of Fort St. John in the Pink Mountain area. Ross had no difficulty with the Fish and Wildlife Branch of the Ministry of Environment, Lands and Parks until the 1970s when he imported buffalo as domestic stock into his territory. These matters were not resolved until after a lengthy process ending in 1990 which left Ross bitter about the actions of the government and the Conservation Officer Service. When Ross applied to renew his guide outfitter certificate in 1993, he was informed that the Regional Manager was concerned about his guiding activities and that a section 52 hearing would be convened to determine whether the certificate should be

APPEAL NO. 93/25 Page 2 renewed. In the meantime, Ross applied to transfer his certificate to his daughter pursuant to section 63(1) of the Wildlife Act. Subsection 63(1) states: (1) The privileges conferred in a guide outfitter s licence or certificate may not be transferred without the authorization of the regional manager. This application was denied by the Regional Manager pending the outcome of the section 52 hearing to determine whether to renew his certificate. The section 52 hearing was held in the absence of Ross and his lawyer. The Regional Manager decided not to renew Ross s certificate. Ross s lawyer successfully appealed the ruling in the Supreme Court of British Columbia and the Regional Manager renewed Ross s certificate and licence for a period of one year. He then advised Ross that a section 62 hearing would be conducted. The relevant portions of section 62 state: (1) Where a person who holds or applies to renew a guide outfitter 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. Out of an abundance of caution the Regional Manager requested the Deputy Director to conduct the hearing. The section 62 hearing was held on June 24, 1993, by the Deputy Director concerning 21 allegations of misconduct by Ross. This hearing was conducted in the absence of both Ross and his lawyer.

APPEAL NO. 93/25 Page 3 On September 1, 1993, the Deputy Director cancelled Ross s certificate and suspended his licence but gave him 15 days to finish any current hunts and to remove hunters from his territory. He held that there was sufficient evidence to find that 16 of the allegations had been made out. These allegations include hunting moose, elk and goat during closed seasons as well as shooting an undersized sheep and then trying to legalize it. The Deputy Director also commented in his written reasons that any transfer of Ross s certificate prior to the cancellation of his certificate would not be proper. Ross was also charged under three separate Provincial Court Informations with offences under the Wildlife Act in 1992 and 1993. In 1996 Crown Counsel stayed all charges against Ross. This matter was appealed to the Environmental Appeal Board by Ross on the grounds that: a) the Regional Manager, Dave Zirul, unfairly refused to allow Ross to transfer his certificate and licence prior to the section 62 hearing; b) the Deputy Director and the Regional Manager were unfairly biased against Ross; c) the evidence heard at the section 62 hearing was tainted by not being given under oath and by being a repeat of the evidence taken at the section 52 hearing which was later overturned; d) the Deputy Director unlawfully exercised his discretion in cancelling Ross s guide outfitter s certificate and suspending his guide outfitter licence; e) Ross had not been given full opportunity to present his case due to the actions of his former lawyer. The order sought by Ross was that his guide outfitter certificate and licence be reinstated or, in the alternative, that he be allowed to transfer his certificate. ISSUES AND EVIDENCE During the appeal several issues were identified and the grounds of appeal were narrowed. Ross ultimately conceded that the Deputy Director, having found that 16 allegations of misconduct under the Wildlife Act had been made out, could properly cancel his certificate. Accordingly, this ground of appeal was abandoned. The Panel has addressed the remaining issues as follows: Issue 1. Perception of Bias Due to difficulties concerning the importation of buffalo and the almost 20 years of charges and counter-charges between Ross and the Fish and Wildlife Branch, Ross was concerned that he was unfairly singled out for investigation by the Conservation Officer Service. One of Ross s guides, Mr. Parenteau, was questioned by Senior Conservation

APPEAL NO. 93/25 Page 4 Officer Bruce Voth ( Voth ) and received the distinct impression that Voth was out to get Ross. Ross also pointed to the staying of all Provincial Court charges to buttress his argument that the evidence relied upon by the Deputy Director in the section 62 hearing was insufficient to support charges and confirmed his suspicion that the Deputy Director was biased against him. Voth testified that, during his investigation of Ross, he made promises or veiled threats to some of Ross s guides in order to obtain evidence against Ross. Voth testified that this was part of his investigation technique and that any promises or veiled threats did not arise from any preconceived dislike of Ross or desire to see Ross charged with offences under the Wildlife Act. In the Panel s view, it is unfortunate that Ross s difficulties with respect to the buffalo were so closely followed by Voth s investigation but there was no evidence produced that linked these two activities to support a finding of conspiracy or biased intent against Ross. The Panel is not convinced that Voth acted out of malice or bias in his investigation of Ross s activities. Nor is the Panel convinced that either the Regional Manager or the Deputy Director were biased against Ross. While the staying of charges might have had a bearing on the Deputy Director s decision, section 62 of the Wildlife Act allows a Regional Manager (or Deputy Director) to conduct a hearing for another cause that the regional manager considers reasonable. In this case, 21 allegations of misconduct was sufficient other cause for the section 62 hearing to be conducted. Ross s perception of bias also arose from the fact that the Regional Manager and the Deputy Director are both employees of the Fish and Wildlife Branch and had a working relationship. Also, it is clear that the Regional Manager was sufficiently concerned about a perception of bias that it was at his request that the Deputy Director conducted the section 62 hearing after the section 52 hearing was overturned. However, mere opportunity for bias does not prove bias and Ross has been unable to provide this Panel with proof of actual bias or a reasonable perception of bias. Issue 2. Lack of opportunity to present evidence Ross was concerned that he was unable to tell his side of the story because of the actions of his former lawyer. His lawyer had advised Ross not to be present at the section 62 hearing and the lawyer himself left after the Deputy Director refused to adjourn the hearing pending the outcome of the Provincial Court matters. On appeal, Mr. Justice Lowry of the Supreme Court of British Columbia upheld the Deputy Director s decision to proceed with the hearing prior to a trial in the absence of either Ross or his lawyer. While it was unfortunate that Ross did not provide evidence at the section 62 hearing due to his lawyer s advice, he was given the opportunity on this appeal to address some of the allegations that were before the Deputy Director. While the Panel is satisfied that the Deputy Director proceeded appropriately with the evidence that was

APPEAL NO. 93/25 Page 5 before him, the Panel agrees that if Ross s evidence had been presented to the Deputy Director, the outcome might well have been different. Issue 3. Refusal to allow transfer Prior to the section 52 hearing, Ross s application to transfer his certificate to his daughter was denied pending the hearing. Ross testified that he did not know that he had the right to appeal the refusal. He did not pursue a transfer with Mr. Watson prior to the section 62 hearing and felt unable to proceed after reading the Deputy Director s comment in the decision that any transfer of Ross s certificate prior to cancellation of the certificate would not be proper. Ross argued that the Deputy Director unduly fettered his discretion, and that of the Regional Manager, by commenting on the propriety of Ross transferring his certificate before the cancellation took effect. The one line comment by the Deputy Director had the effect of suspending Ross s negotiations with Mr. Watson. Ross testified that he had lost approximately $300,000 per annum in business revenue since the cancellation of his certificate. He also noted that other guide outfitters who had been convicted of Wildlife offences had been allowed to transfer their certificates and that he was not treated fairly. The lawyer for the Deputy Director argued that the Panel could not examine this issue and that it must confine itself to the simple issue of whether the Deputy Director acted within his jurisdiction in cancelling the certificate. This Panel has determined that it has jurisdiction to examine the issues raised by Ross, including the issue surrounding the transfer of the certificate. It is obvious from Voth s testimony before this Panel, as well as a review of the Deputy Director s decision, that the issue of transfer was never addressed by any witnesses, nor the lawyer, at the section 62 hearing. This Panel disagrees with the Deputy Director s lawyer that the Deputy Director s comment was of little importance. The effect of the Deputy Director s one liner from his September 1, 1993, decision has been to remove the opportunity of the Regional Manager to consider any request for transfer and effectively barred Ross from even bringing an application pending this appeal. The Deputy Director effectively decided a matter that was not before him and, in doing so, fettered the discretion of the Regional Manger. The cases of Prinz, a section 62 hearing conducted by the Ministry of Environment (Hearing No. 92/04) and Hansen, an appeal to the Environmental Appeal Board (Appeal No. 88/05 - Wildlife), presented by Ross, were situations where despite convictions under the Wildlife Act, the guide outfitters were allowed to transfer their certificates. Ross was never convicted of any offences and the allegations do not appear to be any more severe than those stated in either of the above noted cases. If the intent was to prevent any future infractions, the cancellation and suspension have been effective. Ross has given up his guiding activities and does not require further discipline to prevent any future offences or breaches of the Wildlife Act.

APPEAL NO. 93/25 Page 6 It was also clear from Ross s testimony that some of the allegations against him arose due to his misunderstanding about hunting boundaries. Voth agreed that this evidence reduced the seriousness of the allegations. Voth also testified that, with the evidence presented by Ross with respect to the killing of a stone sheep, he would no longer object to Ross transferring his certificate. DECISION In making this Decision, the Panel of the Environmental Appeal Board has carefully considered the evidence and testimony presented. It is this Panel s duty on appeal to determine whether the Deputy Director properly exercised his discretion uninfluenced by irrelevant considerations and not arbitrarily or illegally (Olson v Walker et. al. (August 21, 1989), Duncan 2286 (B.C.S.C.)). The Ministry of Environment, Lands and Parks Policy 4.4.01.04 clearly directs that the Regional Manager or Director shall not authorize the transfer of the right to guide under the guide outfitter licence or certificate until a decision is made by the Regional Manager. If the decision...is to cancel then the right to guide...is forfeited to the Crown. (emphasis added) In considering disciplinary action against Ross, the Deputy Director can exercise all the powers of a Regional Manager pursuant to section 102 of the Wildlife Act. The Deputy Director could have refused to allow Ross to transfer his certificate if the issue of the transfer had been argued before him at the section 62 hearing. Counsel for the Regional Manager did not raise the issue of transfer, nor was there any evidence before the Deputy Director about the suitability of allowing Ross to transfer his certificate. The Deputy Director had either to hear evidence or allow the Regional Manager to exercise his own discretion in considering a transfer. In making a decision without evidence or submissions, the Deputy Director effectively went beyond his own power and fettered the discretion of the Regional Manager. It is the decision of this Panel that the Deputy Director: 1. Was not biased and properly exercised his discretion in deciding to cancel Mr. Ross s certificate and to suspend his licence; and 2. Erred in law by deciding an issue not properly before him thereby fettering the ability of the Regional Manager to exercise an independent discretion. Accordingly, the matter is sent back to the Deputy Director with the following directions: 1. The Deputy Director shall renew the Appellant s Guide Outfitters Certificate for a period of 90 days to allow the Appellant to file a formal application for transfer of the said certificate.

APPEAL NO. 93/25 Page 7 2. The Deputy Director (or the Regional Manager if the Deputy Director so delegates) shall decide whether to authorize a transfer and the conditions of any such transfer. If the Appellant fails to file a transfer application or having filed one, is denied the transfer, the Certificate will cease to exist. Katherine L. Hough, Panel Chair Environmental Appeal Board February 14, 1997