Petrell v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development)

2023 BCCA 80 Petrell v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Petrell v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2023 BCCA 80 Date: 20230203 Docket: CA48322 Between: Dr. Royann Petrell Appellant (Petitioner) And Minister of Forests, Lands, Natural Resource Operations and Rural Development and Teal Cedar Products Ltd. Respondents (Respondents) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Fitch The Honourable Madam Justice DeWitt-Van Oosten On appeal from: An order of the Supreme Court of British Columbia, dated May 6, 2022 (Petrell v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2022 BCSC 750, Victoria Docket S220668). Oral Reasons for Judgment Counsel for the Appellant: R.E. Gutman S.E.B. Nixon M. Aeberhardt, Articled Student Counsel for the Respondent, Teal Cedar Products Ltd.: D.L. Dalke A.R. Hudson Counsel for the Respondent, Minister of Forests, Lands, Natural Resource Operations and Rural Development: K.A. Reilly T. Bant Place and Date of Hearing: Vancouver, British Columbia January 23, 2023 Place and Date of Judgment: Vancouver, British Columbia February 3, 2023 Summary: The appellant appeals an order striking her petition for judicial review of the respondent Minister's authorizations to close roads with gates on the basis that she had not exhausted the statutory review

process before the Forest Practices Board as set out in the Forest and Range Practices Act. On appeal, she argues that the judge erred in concluding that the Board's process was an adequate alternative remedy. Held: Appeal dismissed. The adequacy of an alternative remedy to judicial review is a multi‑factoral question; no single factor is a requirement for determination that an internal process is an adequate alternative. Here the judge's weighing of the Board's expertise and lack of final remedial authority is entitled to deference. Requiring the appellant to follow the Board's complaint process did not immunize the authorizations from judicial review. [1] SAUNDERS J.A.: Dr. Royann Petrell is endeavouring to have decisions made by the Minister of Forests, Lands, Natural Resource Operations and Rural Development to close certain roads quashed on the basis they were unlawful. The roads are within Tree Farm Licence 46 held by Teal Cedar Products Ltd., located on Crown land. The closure of these roads was effected by installation of security gates under authorizations granted by the Minister to Teal Cedar under s. 22.2 of the Forest and Range Practices Act, S.B.C. 2002, c.

69. In referring to the Minister, I also refer to her delegates who have acted within their authority under the Act. [2] The Forest Practices Board is a statutory body under the Act, authorized to hear complaints from the public and to carry out special investigations and audits about prescribed matters that relate to the Act. Section 5(1) of the Forest Practices Board Regulation, B.C. Reg. 15/2004, establishes the matters about which a person may complain to the Board: 5 (1) The matters on which a person may make a complaint to the board under section 123 of the Act are the following: (a) a party's compliance with the requirements of Parts 2 to 5 and 11 of the Act and the regulations and standards made in relation to those Parts; (b) the appropriateness of government enforcement (i) under Part 6 of the Act, or (ii) relating to Part 11 of the Act. [3] Teal Cedar says the subject of the petition is within s. 5 of the Regulations, and Dr. Petrell recognizes the Board's processes on such a matter. [4] Dr. Petrell did not make a complaint to the Board about the road closures she seeks to challenge. Rather, she challenged the gate authorizations by way of a petition for judicial review. [5] By the order appealed, Mr. Justice Steeves, finding that the Forest Practices Board could enquire into the subject of the petition, struck the petition on the basis of prematurity. He held that

Dr. Petrell had to first exhaust the statutory review process set out in the Act through a complaint to the Board and that she had failed to do so. His conclusion was summarized in his reasons for judgment indexed as 2022 BCSC 750: [57] The petition filed February 28, 2022 must be struck as it fails to set out a foundation for a type of proceeding authorized to be brought by petition. The petitioner has an adequate alternative in the complaint process of the FPB and it is not appropriate for the court to undertake judicial review at this time. [6] On the judge's view of prematurity, he did not address the issue of standing, also raised by Teal Cedar. [7] Dr. Petrell appeals from the order striking the petition and asks for an order remitting it to the Supreme Court of British Columbia. She contends that the judge erred in the exercise of his discretion in two ways: first, by giving insufficient weight to the Board's remedial deficiencies to reach an unreasonable conclusion that the deficiencies were outweighed by the Board's relative expertise in forestry roads; and second, in applying this court's reasons in Johnson v. British Columbia (Workers' Compensation Board), 2011 BCCA 255, leave to appeal to SCC ref'd 34348 (19 January 2012). [8] Dr. Petrell also contends that the judge erred by failing to consider whether requiring her and others to complain to the Board with respect

to gate authorizations effectively insulates the Minister from review of her statutory decision making, undermining the rule of law and the constitutional nature of the public's right to judicial review. [9] As in all appeals, we must start with recognition of our proper role as an appellate court. Judicial review is discretionary: Strickland v. Canada (Attorney General), 2015 SCC 37. This means that our approach must be deferential, and we may only interfere with the exercise of discretion where the judge has acted on a wrong principle or failed to give sufficient weight to all the considerations: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 76-77; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2 at para. 43; Harelkin v. University of Regina, [1979] 2 S.C.R. 561 at 587-88. On the question of discretion, Madam Justice Newbury observed in Singh v. Reddy, 2019 BCCA 79: [17] One is reminded of Lord Bingham's observations in The Business of Judging: Selected Essays and Speeches (2000): According to my definition, an issue falls within a judge's discretion if, being governed by no rule of law, its resolution depends on the individual judge's assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case. He has no discretion in making his findings of fact. He has no

discretion in his rulings on the law. But when, having made any necessary finding of fact and necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion. [At 36.] [10] In Strickland, Justice Cromwell for the majority discussed the significant role that the availability of an adequate alternative to judicial review has played since at least Harelkin. He observed, in passages relied on by this court in Bowolin v. British Columbia Transportation Financing Authority, 2018 BCCA 411: [40] One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative. The leading case is Harelkin, in which a student alleged that a university committee made a decision that violated his procedural rights. There was a right of appeal to the university's senate, but instead of pursuing it, the student applied for judicial review. This Court held that the judge at first instance had erred in entertaining the judicial review application because he failed to exercise his discretion on relevant grounds: he did not consider whether the internal appeal process was an adequate alternative remedy that was capable of

curing the denial of natural justice of which the student complained. [42] The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as to justify a discretionary refusal to hear a judicial review application. These considerations include the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost: [citations omitted] [43] Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis: [citations omitted] [44] This balancing exercise should take account of the purposes and policy

considerations underpinning the legislative scheme [Emphasis added.] [11] Also, in Strickland, at para. 59, the court confirmed that parties are not guaranteed a perfect alternative remedy, but rather an adequate remedy. [12] In this appeal, Dr. Petrell's contention is that the internal remedy set out in the Board's complaint procedure, as provided in the Act, is not an adequate alternative remedy because the Board's remedial capacity is limited--the Act does not provide for binding determinations. So, Dr. Petrell says, the judge was wrong in his para. 57. [13] Before I address the substance of the appeal, I will set out in brief terms the context of the road closures and Dr. Petrell's interest in accessing TFL 46, the statutory provision under which the authorizations issued, and the internal review scheme provided by the Act. [14] Dr. Petrell is an associate professor emerita at the University of British Columbia. She is described in the reasons for judgment as an avid bird watcher who has been active in identifying birds at risk by reason of wood closures related to logging. [15] Tree Farm Licence 46 is a 60,000-hectare forest tenure area on southern Vancouver Island. Dr. Petrell has identified a number of birds in TFL 46 that are threatened, near-threatened or of special concern. The Ministry of Forests has used the information obtained by Dr. Petrell to conduct follow-up

studies for some species. Dr. Petrell's bona fides is not challenged at all in this regard. [16] TFL 46 and Teal Cedar have been the object of anti-logging protests since August 2020. The judge recognized that Dr. Petrell is not connected with the protestors. He found that Teal Cedar, in permitting Dr. Petrell access to TFL 46, provided evidence that her birding activities are separate from the protests. [17] The protests have been volatile. An injunction, with a police enforcement term, is currently in place to prohibit blockades. The behaviour of the protestors forms the background to the application for gate authorizations, and is relevant to the court's understanding of the exigent circumstances in play when the Minister issued the gate authorizations. The decision of this court Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCCA 26, leave to appeal to SCC ref'd 40115 (29 September 2022), found the behaviour at the protests to be unlawful and contrary to provisions of the Criminal Code. The judge summarized the highly uncivil behaviour of protestors, as described in this court's 2022 reasons for judgment, in his para. 7. [18] Referring to the protests and the dangers the protests created for persons and property, Teal Cedar sought and obtained authorizations from the Minister to install a number of gates to block passage on the roads. The first authorization is

dated May 17, 2021, but it is said the approvals dated from April 2021, and the judge identified Dr. Petrell's interest in the gate authorizations as beginning in March or April 2021. Addressed to Teal Cedar, the initial authorizations say the gates were authorized "for the purpose of protecting logging operations". A later authorization stated it was "for the purpose of safety to protect road building and logging operations, to prevent vandalism to equipment, and to prevent members of the public damaging the road". [19] The gates approved by the Minister restrict vehicle access. At Dr. Petrell's request for access, Teal Cedar agreed to allow her vehicle access to TFL 46 with two people. [20] In the petition, Dr. Petrell contended that the authorizations "effectively granted Teal Cedar private property rights over public lands and significantly restricted access by her and others to government lands." She says the gate authorizations were made for an improper purpose and were based on irrelevant considerations because they did not include conditions requiring Teal Cedar to maintain reasonable public access. In this petition, Dr. Petrell also contends that the Minister breached procedural fairness by not giving her prior notice of the gate authorizations. [21] Teal Cedar says in response that the gate authorizations, addressing exigent circumstances, caused Dr. Petrell no real

prejudice because of the access she was provided. It also says it is relevant that Dr. Petrell delayed in seeking a remedy for the access she says was blocked to her because she knew of the authorizations by June 2021, made no complaint to the Board, and made no effort to question the gate authorizations' validity until she filed her petition for judicial review on February 28, 2022. Most significantly, it says Dr. Petrell should not be able to pursue judicial review until she has pursued the internal complaint process provided by the Act. [22] Provision for the gate authorizations is set out in Part 3 of the Act and so covered by s. 5 of the Regulation. Section 22.2 of the Act first provides that any person may use a forest service road. It then allows the Minister's delegate to take action in these terms: (2) The (a) district manager, for a forest service road, or (b) holder of a road permit or a woodlot licence, for a road under the permit or licence, may take action under subsection (3) if c) use of the road under subsection (1) would likely (i) cause significant damage to the road, (ii) cause significant sediment delivery, or (iii) endanger property, public health or public safety, or (d) the presence on the road of a vehicle or animal would likely cause damage to the road or environment or endanger life or property. (3) In the circumstances described in subsection

(2), (a) the district manager, for a forest service road, may (i) close the road or restrict its use, or (ii) remove a vehicle or an animal from the road at the expense of the owner of the vehicle or animal, and (b) the holder of a road permit or a woodlot licence, for a road under the permit or licence, (i) with the prior consent of the minister, may close the road or restrict its use, or (ii) may remove a vehicle or an animal from the road at the expense of the owner of the vehicle or animal. [23] The legislative scheme for internal review is set out in Part 8 under the title "Forest Practices Board". Section 121 of Part 8 defines party as including "the government". Section 123 provides for complaints from the public to the Board: 123 (1) In accordance with the regulations, the board must deal with complaints from the public respecting prescribed matters that relate to this Act. (2) Despite subsection (1), the board may refuse to investigate a complaint, or may stop investigating a complaint, if, in the opinion of the chair, any of the following applies: (a) the complainant knew or ought to have known of the determination to which his or her complaint relates, more than one year before the complaint was received by the board; (b) the law or existing administrative procedure provides a remedy adequate in the circumstances for the person aggrieved and, if the person aggrieved

has not taken advantage of the remedy, there is no reasonable justification for the failure to do so; (c) the complaint is frivolous, vexatious, not made in good faith or concerns a trivial matter; (d) having regard to all the circumstances, further investigation is not necessary in order to consider the complaint; (e) in the circumstances, investigation would not benefit the complainant. (3) The board must promptly notify, in writing, the complainant and the party of its decision and the reasons for it and may indicate any other recourse that may be available to the complainant if it decides (a) to not investigate or further investigate a complaint, or (b) that the complaint has not been substantiated. [24] Part 8 then adds detail on the investigative powers of the Board and remedies: 125 (1) The board may require a party to provide information or records related to an audit, a special investigation or a complaint investigation. (2) The board may require the party to provide the information in the form and manner the board considers appropriate. (3) The party must comply with a requirement of the board under subsection (1) or (2). ... 131 (1) Subject to subsection (1.1), after completing an audit or investigation, the board must report its conclusions, with reasons, to any complainant, to the party and, if the government is not the party affected by the audit or investigation,

to the ministers. ... (2) If the board makes a report under subsection (1), it may make recommendations it considers appropriate. (3) Without limiting subsection (2), the board may make any of the following recommendations: (a) a matter be referred to the appropriate party for further consideration; (b) an act be remedied; (c) an omission or delay be rectified; (d) a decision or recommendation be cancelled or varied; (e) reasons be given; (f) a practice, procedure or course of conduct be altered; (g) an enactment or other rule of law be reconsidered; (h) any other steps be taken. ... 132 (1) If the board makes a recommendation under section 131 the board may request that the party notify it within a specified time (a) of the steps that have been taken or are proposed to be taken to give effect to its recommendation, or (b) if no steps have been taken or are proposed to be taken, of the reasons for not following the recommendation. ... 133 (1) If, within a reasonable time after a request by the board under section 132, no action is taken that the board believes adequate or appropriate, the chair may, after considering any reasons given by the party, (a) submit a report on the matter to the ministers, and (b) after submitting a report under paragraph (a), submit a report to the Lieutenant Governor in Council respecting the matter. ... 134 After a complaint investigation, if the

board makes a recommendation under section 131 or 132 (2) and no action that the board believes adequate or appropriate is taken within a reasonable time, the board must inform the complainant of its recommendation and make such additional comments as it considers appropriate. [25] The judge's reasons set out these provisions and then turn to the main issue before him: was there an adequate alternative remedy available to Dr. Petrell that should be pursued before the court engaged in the processes of judicial review? Justice Steeves contrasted the circumstances before him with the circumstances in Western Canada Wilderness Committee v. British Columbia (Minister of Forests, Lands and Natural Resource Operations), 2014 BCSC 808, in which the court concluded the Board provided an adequate alternative remedy to judicial review. He said: [45] The issue in the subject petition is a relatively narrower one, involving essentially a legal issue: the lawfulness of gate authorizations. There is something to the petitioner's submission that the FPB does not have any more expertise on this issue than the courts. The FPB does have expertise in logging roads and, unlike the courts, investigative powers. The remedial capacity of the FPB and the courts also differ. The former can make only recommendations while the latter can make binding decisions (subject to appeal). I also note the gate

authorizations were made under the Minister's authority and it is of concern that this same authority has the final say on whether to accept or not to accept a recommendation from the FPB about gate authorizations (subject to judicial review). [26] The judge next turned to this court's decision in Johnson. Johnson addressed an intricate review and appeal process in British Columbia's workers' compensation scheme. In that legislated scheme, workers' compensation claims policy is set by the board of directors. On a challenge to a policy, the Workers' Compensation Appeal Tribunal may conclude the policy is patently unreasonable. If it does, the Tribunal must refer the policy to the Chair of the Workers' Compensation Board. The Chair may decline to find the policy unreasonable, in which case the policy continues to bind decision makers. But on the alternative finding of patent unreasonableness, the Chair must refer the policy back to the board of directors that established the policy, which reaches its own conclusion on the question. The board of directors' conclusion then binds the Workers' Compensation Appeal Tribunal. In other words, the Workers' Compensation Appeal Tribunal, being the appeal body, does not bind the policy maker with its conclusion. In Johnson, this court held that even absent a binding remedial capacity, the process provided was an adequate alternative that

must be pursued before the court would consider judicial review. The court in Johnson said, in passages relied on by the judge: [39] The effect of this stringent regime is that it is not immediately rewarding to the individual who appeals but cannot convince the board of directors to vary or amend its policy. To ultimately succeed, the individual must seek judicial review. That said, three benefits are achieved for the system: consistency for all workers and employers affected by the policy; an opportunity for the board of directors in the first instance to adjust its policy to make it compliant with the WCA (or simply to change the policy if it is convinced by the argument that there is a better one); and finally, a record is created containing the expert views of WCAT, the chair of WCAT and the board of directors as to the validity of the policy in question. [40] In my view, the benefits provided by the internal appeal provisions at least equal the disadvantage they present in failing to deliver an immediate remedy to the person who does not convince the board of directors that one of its policies is wrong. [27] The judge said in respect of the issue before him: [52] In my view a similar balancing exercise is required in the subject petition. On the one hand there is the direct remedial authority of this court to decide the issues raised by the petition. The court has

generalized knowledge and it has considerable experience in deciding legal issues, but it has no expertise in forestry or road building. [53] In contrast, there is the alternative remedy of the FPB which has jurisdiction over decisions to authorize gate closures and which brings undisputed specialized knowledge in forest practices to issues such as forestry roads. The board also has investigative powers which are not available to the courts. However, a decision of the FPB is only a recommendation. It lacks finality and leaves the final decision to the Minister, the authority that issued the authorizations at issue in the first place (as was the case in Johnson where the board of directors were also the final arbiter of disputes over their policy). And judicial review of a decision of the FPB would be based on the reasonableness of the Minister's decision and not the legal issue of gate authorizations per se. [54] The idea of agencies having the final say on their own policy was one of the disadvantages identified by the Court of Appeal in the workers' compensation appeal system in Johnson. In my view it is a disadvantage here as well with respect to s. 22.2 of the FRPA. But I adopt the conclusion in Johnson that it is not a decisive factor in favour of the courts' jurisdiction. [55] The process in the FRPA is one that government has decided to put in place and, as in

Strickland, I am required to be appropriately respectful of that process. There may be issues where the FPB has jurisdiction and there is also a role for the courts. But, in my view, in this case the board knows logging roads (including closing them) better than the courts and, in my view, this is not a case where the court should take jurisdiction. [56] A matter of some significance here is whether the alternative remedy before the FPB is "adequate." As above, adequate does not mean that the process or the remedy at the FPB must be identical to those on judicial review (Strickland, at paras. 40, 42). It seems to me that the process before the FPB is less adversarial and more investigative than the courts. I do not consider those differences fatal to the direction in the legislation that disputes over gate authorizations under s. 5 of the Forest Practices Board Regulation "may" form the basis of a complaint to the FPB. As for the remedy before the FPB, I take from Johnson that a tribunal with the complications and disadvantages in that case means that equivalent issues with the process under the FRPA are not fatal to the FPB being an alternative remedy. [28] With this background to the issues before us, I turn to Dr. Petrell's submissions. She agrees that the judge correctly described the factors relevant to determining whether an alternative remedy is adequate, but says the

judge failed in applying them. She invokes the undoubtedly correct principle that the legislature cannot oust the judiciary's power to review decisions of administrative bodies: Manz v. Sundher, 2009 BCCA 92, applying cases including Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. [29] Dr. Petrell says the judge erred in applying the relevant factors in three ways: 1) the conclusion the Act provides for adequate alternative remedies is unreasonable; 2) the judge erred in his understanding and application of Johnson; and 3) the judge failed to consider a relevant factor, being that requiring a complaint to the Board before judicial review will be entertained effectively immunizes the gate authorizations from judicial review. [30] In my respectful view, none of these submissions provide a proper basis for us to interfere with the judge's exercise of his judicial discretion. [31] I will start with Dr. Petrell's submission on the import of Johnson, for by it she lays the groundwork for her position that a decision that a scheme, such as this one, that lacks authorization in the tribunal to make binding decisions, is incapable of providing an adequate alternative remedy absent a transcendent legislative purpose that can overcome the remedial deficiency. This issue leaks into Dr. Petrell's two other submissions that the judge's conclusion is so unreasonable as to fail

even on the deferential approach we must bring, and the submission that the decision wrongly immunizes the gate authorizations from review. [32] Dr. Petrell's submission rests on para. 32 of Johnson: I agree with this analysis of the process. Once the board of directors makes a decision to implement the policy there is no independent body which can override it, except the Supreme Court on judicial review. In such a situation, the internal appeal review is ineffective in providing a remedy to someone in Mr. Johnson's position. Groberman J. was not asked to determine whether this process serves a purpose which legitimately transcends the immediate interests of the party seeking the review. Unless there is such a purpose, the internal appeal process would have to be seen as inadequate. [Emphasis added.] [33] At its core, Dr. Petrell's submission addressing Johnson is that a legislative scheme that lacks a final remedial authority cannot provide an adequate alternative remedy without the transcendent purpose described in para 32. I do not agree for three reasons. [34] First, determining the character of an adequate alternative remedy has always engaged a robust, multi-factoral consideration addressing the circumstances revealed in the record of the case. While the nature and purpose of the legislative scheme is always relevant, so too is the entire congeries of circumstances

revealed, often organized under the headings of the factors mentioned in para. 42 of Strickland referred to earlier. In Strickland, the court also said: [45] The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules. All relevant factors, considered in the context of the particular case, should be taken into account. [35] Strickland is more recent authority than Johnson, and is authoritative on the point. Strickland affirms, on my reading, that no single factor is a requirement for determination that an internal process is an adequate alternative. [36] Second, I do not read para. 32 of Johnson as imposing a rule to the effect that where a scheme does not give the reviewing body final remedial authority, that scheme will be an adequate alternative to judicial review only where there is the described transcendent purpose. On reading the reasons as a whole, I understand para. 32 as addressing the case before the court, not as setting a rule for other statutory schemes. Given the broad variety of internal review schemes and the broad scope of issues addressed in the province's varied legislation, such a conclusory statement intending to establish a rule for all schemes would warrant far greater consideration. As Madam Justice D. Smith observed in Cowichan Valley (Regional District) v. Cobble Hill Holdings Ltd., 2016

BCCA 432: [85] The oft-quoted passage in Quinn v. Leathan, [1901] A.C. 495 (H.L.) is apposite in these circumstances: there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. [Emphasis added by Justice Smith.] [37] Third, in any event, it seems to me that the various circumstances regulated by, or of concern in, the Act, such as stewardship of the environment, details for harvesting and transportation, resource sustainability, all with labour and community impact, are capable of raising issues that transcend the interests of an individual. To say otherwise is to ignore the reason for the breadth of issues addressed in the Act, and its central role in the life of British Columbia. [38] For these reasons, I would not accede to this submission. [39] I turn next to Dr. Petrell's submission that the judge gave too much weight to the Board's expertise and too little weight to the Board's lack of final remedial

authority when compared to the court's authority. [40] The relative importance of these two factors occupied much of the judge's discussion in his reasons for judgment. He was alive to Dr. Petrell's criticisms of the Board's authority. He covered these matters and the concept of adequacy in his paras. 52-56 referred to earlier. [41] In conclusion, the judge said: [61] There is an alternate remedy to the petitioner with the FPB. It has jurisdiction over the legality of gate authorizations and it has expertise in forestry operations and forestry roads. The FPB does not have the authority to make a final decision and can only make recommendations to the Minister. This is a disadvantage to the FPB system but it is one that the Court of Appeal in Johnson has concluded does not make the system an inadequate internal review procedure. [42] While the judge focused his attention on the Board's expertise, and its powers under the Act, he was being responsive to the submissions advanced by the petitioner. It was for the judge, having heard the submissions, to weigh relevant factors and arrive at a conclusion. His conclusion is entitled to deference and I would not interfere with the order on this basis. [43] Third, Dr. Petrell says that the result of the order is to immunize the gate authorizations from judicial review, leaving their legality unchallengeable. [44] Again, I do not agree.

The scheme of the Act, while not containing crisp time limits, requires the Board to report promptly to the complainant and the Minister regarding its decisions (s. 123 of the Act) and to report its conclusions following an investigation (s. 131 of the Act). [45] The provisions of ss. 132 to 134 provide some measure of accountability of the Minister for recommendations made by the Board, a process that is not without an element of persuasion. [46] Beyond that, a complainant dissatisfied with the results of the complaint process may then apply for judicial review. While the point is not taken before us, I would not adopt the judge's statement in his para. 53 that there would then be a difference between that judicial review's handling of the "legality" of the gate authorizations, and the treatment that issue would receive were this judicial review petition to proceed now. Colwill v. Workers' Compensation Board, 2019 BCCA 453 is instructive on this point. [47] At the hearing of the appeal, Dr. Petrell also submitted that the time that would be required for resolution, said to be up to a year, would render the process nugatory--that the time for completion of the process was so long that the gate authorizations were likely to have expired without redress. This means, she says, that the order appealed shields the gate authorizations from scrutiny. [48] The evidence before the Court

did not identify a time period in which a complaint of this nature would be resolved, but it did include the Complaint Investigation Process of the Board, including this passage: An investigation can be unsettling and have a disruptive effect on a party's operations and/or on the individuals involved. In addition, complaints usually arise from a dispute, therefore it is important to participants that the Board expresses its views as quickly as possible. Thus, the Board's goal is to produce reports in a timely manner while maintaining standards for clarity, thoroughness and fair process. [Emphasis added] [49] This evidence does not establish temporal inadequacy on the part of the Board for the task assigned to it. The submission, respectfully, is not an answer to a failure to follow a legislated process. It is mere speculation that the process would be useless when no attempt has been made to engage it. [50] It follows that I would dismiss the appeal, with thanks to all counsel for their submissions. [51] FITCH J.A.: I agree. [52] DEWITT-VAN OOSTEN J.A.: I agree. [53] SAUNDERS J.A.: The appeal is dismissed. "The Honourable Madam Justice Saunders"