IN THE SUPREME COURT OF BRITISH COLUMBIA
Bentley v. Forest Appeals Commission, et al.,
2003 BCSC 832
Forest Appeals Commission, and
Forest Practices Board, and
Government of British Columbia
Before: The Honourable Mr. Justice E.R.A. Edwards
Reasons for Judgment
Counsel for the Appellant
Counsel for the Respondent
Government of British Columbia
Jeffrey M. Loenen
Date and Place of Trial/Hearing:
May 20 and 21, 2003
 This is a statutory appeal from a decision of the Forest Appeals Commission which largely upheld a decision of a Review Panel under the Forest Practises Code of British Columbia Act, R.S.B.C. 1996, c. 159 (the “Code”) which in turn upheld a decision of the Fort St. John Forest District Manager which found the appellant, Mr. Bentley, in breach of ss. 96(1) and 97(1) of the Code.
 It is not in dispute that Mr. Bentley logged about 3,750 cubic metres of timber with a market value of about $428,400 from Crown Land in violation of the Code.
 The Crown stumpage value was about $225,000. The maximum penalty under s. 119 of the Code for unauthorized removal of Crown timber is the stumpage plus twice the market value, in this case something over $1 million. There is no statutory minimum penalty.
 At issue is the penalty imposed. The District manager assessed penalties of $2,500 for contravention of s. 97(1), $234,837.36, based on stumpage, for contravention of s. 96(1) and $30,297.36 for silvicultural rehabilitation under s. 119(3)(a) of the Code.
 The Commission reduced the s. 96(1) stumpage assessment for unauthorized harvesting to $225,042.31, rescinded the silvicultural rehabilitation penalty and affirmed the s. 97(1) penalty.
 All three tribunals which have considered the matter rejected the defence of “officially induced error”, which was abandoned by the appellant’s counsel in submissions to the Court.
 The appellant’s submission was that the Commission failed to address his argument that the penalties imposed ought to have been reduced to reflect the “contributory negligence” of the Ministry of Forests officials he dealt with in failing to disabuse him of his mistaken belief the land he logged belonged to the Bentley family not the Crown.
 The Court must address the issue of whether there is any merit to the “contributory negligence” submission rather than simply rule on the question of whether the Commission failed to address it. If it has no merit, failure to address it would not have altered the Commission’s decision.
 The Commission made specific findings of fact which, in my view, preclude the application of contributory negligence principles in this case, assuming they can have any application to an administrative proceeding such as this.
 First, the Commission found that the range staff of the Ministry of Forests “had a working understanding” that the area logged, which had been grazed by the Bentleys’ cattle for years, without a grazing permit from the Crown, was an area which “the Bentleys had ownership of, or grazing rights to”.
 Second, the Commission found that “The information provided to Mr. Bentley about the private property location was sketchy, and by Mr. Anderson’s account, was couched in warnings to him that he should have the boundaries surveyed.” Mr. Anderson was a Ministry of Forests official.
 Third, the Commission found “... that Mr. Bentley genuinely believed that the property he logged was family property. However, rather than relying on any official, Mr. Bentley relied on what his grandfather had told him and the fact that his family had treated the Crown land as being their land. His reliance was on an erroneous understanding in his family, not on erroneous advice from an official.”
 These findings indicate that Ministry of Forests officials were uncertain about the ownership of the area Mr. Bentley proposed to log and gave him no express assurance that it was not Crown land.
 Since Ministry officials knew where he proposed to log, it may be inferred they shared his misapprehension about ownership of that area. There is no evidence, nor is it alleged, they stood by in silence while he logged, with actual knowledge he did so in trespass on Crown land.
 The appellant’s argument amounts to this; although Ministry officials shared his mistaken belief that the land was Bentley family land, they owed him a duty to determine the ownership of the land and to warn him off.
 That submission contradicts s. 97(2) of the Code which provides “before a person cuts or removes timber from private land adjacent to Crown land, the person must ascertain the boundaries of the private land.”
 According to a survey of the area where the logging occurred, it was partly above the northern boundary of the SE 1/4 section of lot 16. That is Mr. Bentley logged part of the NE 1/4 section of lot 16.
 It was the SE 1/4 section which the Commission found Mr. Bentley genuinely believed was his family’s property.
 In fact, the northern half of the SE 1/4 section where the bulk of the logging occurred was Crown land.
 There is no suggestion in the Commission’s written decision that Mr. Bentley believed the NE 1/4 section, where part of the logging took place, was his family’s property.
 In other words, the SE 1/4 section he believed was Bentley family’s property was “adjacent to” land Mr. Bentley knew to be Crown land. The fact he logged in the NE 1/4 section leads to the inference he did not know where the boundary of the adjacent Crown land was.
 Had Mr. Bentley obtained a survey as Mr. Anderson recommended in order to comply with s. 97(2) of the Code since he did not know the boundary of what he believed was his family’s private land, it seems likely he would have learned the northern half of the SE 1/4 section was Crown land. He certainly would not have cut Crown timber from the NE 1/4 section had he complied with s. 97(2).
 I have concluded that s.1 of the Negligence Act, R.S.B.C. 1996, c. 333 does not apply in this case. It deals with the apportionment of damages. No damages could be awarded against the Crown in favour of Mr. Bentley by the Commission as a result of Mr. Bentley’s contraventions of the Code. There is therefore nothing which could be apportioned in Mr. Bentley’s favour to reduce the penalties assessed against him.
 Even if s. 1 of the Negligence Act did apply, ss. 1(3) which provides “Nothing in this section operates to make a person liable for damage or loss to which the person’s fault has not contributed” would preclude its operation in the appellant’s favour in this case. The appellant has wholly failed to demonstrate that the Ministry officials owed him a duty of care to take positive steps to check the title to the SE 1/4 section and warn him against trespass.
 Further, if allocation of fault under s. 1 of the Negligence Act were to apply to reduce the penalties imposed, by parity of reasoning, the appellant must show that he sustained a loss as a result of the alleged fault of the Ministry officials.
 Here it is acknowledged that the s. 96(1) “penalty” imposed represents the stumpage which would have been payable by the appellant if he had obtained proper authority to cut the timber on Crown land.
 Although the appellant did not sell the timber for cash, he obtained the benefit of trading it for a log house of considerable value. The fact Mr. Bentley did this rather than sell the timber for its market value does not derogate from the fact the appellant suffered no loss, but gained a substantial benefit.
 The appellant has been ordered to pay what he would otherwise have paid (the stumpage) had he logged the Crown land with proper authorization, plus a nominal $2,500 for his admitted contravention of s.97 of the Code.
 As a result of his own admitted fault in logging the Crown land without getting a survey to confirm the boundaries of the Bentley property as Mr. Anderson advised him to do, Mr. Bentley caused himself no loss but obtained a benefit. There can be no allocation of fault for causing a non-existent loss.
 If the appellant’s submission were accepted, then the Crown would be potentially obliged to forego a portion of its stumpage revenue in any case where Ministry officials could have determined that logging of which they were aware, might take place on Crown land without proper authorization.
 The Commission did not err in failing to consider the alleged “contributory negligence” of Ministry officials in assessing the penalties it imposed. As it stated:
The Commission has also seriously considered whether the actions of the Ministry of Forests and its acquiescence in allowing the Bentley family to graze cattle on Crown land which they had not leased should mitigate against the penalty imposed below. While the Commission believes that the Ministry of Forests should have been more careful in enforcing the grazing boundaries, ultimately, it was Mr. Bentley’s responsibility to accurately determine the boundaries and ownership of the property he intended to log.
The Commission has also weighed the Ministry’s action or inaction against the magnitude of the contravention and the economic benefit obtained by Mr. Bentley. The Commission finds that the Ministry’s involvement does not diminish the benefit received by Mr. Bentley.
 This passage refers only to the $2,500 s. 97 penalty. Even though the Commission stated that it would not consider the doctrine of contributory negligence, it effectively did consider whether the alleged fault of Ministry officials should reduce that penalty.
 In light of my conclusion that no fault of Ministry officials caused the appellant a loss, since he suffered no loss and the Commission’s parallel conclusion that he received a benefit from his own admitted fault, I conclude that the Commission would have reached the same conclusion regarding “mitigation” of the s. 96 penalty that it did regarding the s. 97 penalty, had it specifically addressed the “contributory negligence” issue when considering the s. 96 penalty.
 The appellant also argued the Commission erred in failing to deal with his request for an order for costs. He asked the Court for costs throughout regardless of the outcome.
 The Review Panel remitted the stumpage calculation back to the District Manager. The appellant chose to appeal to the Commission instead, despite the fact the Ministry asked the Review Panel to remove the silviculture penalty.
 The appellant obtained a reduction in the stumpage component of the penalty and removal of the silvicultural rehabilitation penalty from the Commission. He was therefore partly successful on his appeal. It is not clear he would not have obtained the same result from the District Manager. The fact he abandoned the “officially induced error” defence in this Court also undermines the submission the appellant was justified in pursuing an appeal to the Commission.
 The appellant was partially successful before the Commission, an outcome which often results in an order that parties bear their own costs, but he might have been equally successful on the reconsideration by the District Manager ordered by the Review Panel.
 The other factor the appellant submitted militates in favour of an order for costs throughout was alleged delay by the Ministry.
 The alleged delay was in two parts. First, in not advising the appellant of the trespass until November 1996 although the Ministry became aware of the trespass in the summer of 1996. In the interval the appellant had the log house constructed and moved in. He says this delay prevented him from mitigating his loss.
 I do not understand how he could have mitigated other than by proceeding as he did. He traded the timber for the house so he was not in a position to sell the timber to pay any anticipated penalty. The only way he could mitigate was to obtain the house and the benefit of occupying it. Had he not done that he would have had no benefit and only the prospect of the imposition of penalties for violation of the Code.
 The second part of the appellant’s delay argument was that the Ministry delayed pursuing its remedy for penalties until April 1999. While the matter has been at issue now for nearly seven years since the appellant was advised of the trespass, I fail to see how that entitles the appellant costs, which normally turn on the outcome, not duration of proceedings. The appellant has had “free” housing for over five years.
 The Commission erred in failing to deal with the appellant’s request for costs. I could remit that matter for consideration by the Commission. I do not know if the Ministry would now seek costs from the Commission.
 While I cannot foretell what the Commission might rule on the issue of costs, neither can I direct it in the exercise of its discretion respecting costs. Because of the potential risk of the Commission ruling that the appellant pay costs, I will not direct that it rule on costs, unless one of the parties applies to the Commission to do so.
 The Code is silent as to the Court’s authority to award costs on an appeal. I assume, since both parties seek costs, the Court has inherent jurisdiction to award costs in regard to this appeal.
 Perhaps the Court has jurisdiction to reverse costs awards of the Commission on overturning a decision of the Commission. However, I have difficulty with the proposition the Court may award costs for proceedings before the Commission, Review Panel and District Manager where the Commission has failed to do so and where the appellant is otherwise unsuccessful on an appeal to this Court.
 The appeal is dismissed. The Minister is entitled to costs of this appeal on scale 3.
 The parties may apply to the Commission for a ruling on costs below.
“E.R.A. Edwards, J.”
The Honourable Mr. Justice E.R.A. Edwards