Decision Date: February 14, 1997
Panel: Katherine Hough, Elizabeth Keay, Harry Higgins
Keywords: Wildlife Act – s.52, s.62; fettering discretion; reasonable apprehension of bias
In 1993, Mr. Lynn Ross (the Appellant) applied to renew his guide outfitter licence, but was informed that a section 52 hearing would be convened to determine whether the certificate should be renewed, due to concerns about his guiding activities. The Appellant then applied to transfer his certificate to his daughter, but his application was denied pending the outcome of the hearing. The Regional Manager of Wildlife (the Regional Manager) decided not to renew the Appellants certificate as a result of the section 52 hearing, which the Appellant was not present for, on the advice of his former lawyer. The Appellant successfully appealed the decision from the section 52 hearing in the BC Supreme Court, and had his licence and certificate renewed for one year. The Regional Manager then informed the Appellant that a section 62 hearing would be held to determine whether the Appellants licence and certificate should be cancelled. The reasons for the hearing included 21 allegations of misconduct, including, hunting moose, elk and goat during closed seasons and shooting unauthorized sheep. On the advice of his former lawyer, the Appellant did not attend the section 62 hearing. The Deputy Director cancelled the Appellants guide outfitter licence and certificate as a result of 16 findings of misconduct. The Deputy Director also commented in his written reasons that any transfer of the Appellants certificate prior to its cancellation would not be proper. The Appellant appealed this decision to the Board on the grounds that the Regional Manager unfairly refused to allow him to transfer his certificate and licence prior to the section 62 hearing; the Deputy Director and Regional Manager were biased against him; the evidence heard at the section 62 hearing was not under oath, and was a repeat of the evidence heard at the section 52 hearing which was overturned in court; the Deputy Director unlawfully exercised his discretion in cancelling the Appellants guide outfitter certificate and licence; and the Appellant had not had the opportunity to present his case due to the actions of his former lawyer.
At the hearing, the Appellant conceded that the Deputy Director, having made 16 findings of misconduct, properly cancelled the Appellants certificate. On the evidence presented, the Board found that the Regional Manager and the Deputy Director were not biased , and the Deputy Director properly exercised his discretion in cancelling the Appellants certificate and suspending his licence. The Board did agree that if the Appellant had presented his evidence to the Deputy Director, the result of the section 62 hearing might have been different. The Appellant testified before the Board that he was not aware he had the right to appeal the refusal of the Regional Manager to transfer his guide outfitter certificate, prior to the section 52 hearing. The Board found that the Deputy Directors comment that it would not be proper to transfer the Appellants certificate prior to its cancellation was a decision on a matter that was not before him, and he erred in law by going beyond his own authority. The Board sent the matter back to the Deputy Director with instructions to renew the Appellants guide outfitter certificate for 90 days to allow the Appellant to file an application to transfer the certificate. The appeal was allowed.