Decision Date: May 11, 1999

Panel: Toby Vigod

Keywords: Wildlife Act – ss. 27(2)(b), 101; Wildlife Act Permit Regulation – s.2.2; functus officio; rehearing

This was an appeal from a decision of the Enforcement Manager regarding the transport of the horns and cape of a dead bighorn sheep. Mr. Beranek had found the carcass of a mountain sheep, removed the horns and cape, and then applied for a permit to keep the horns. The Wildlife Manager denied his application for a permit, but his decision was overturned on appeal before the Board (Appeal No. 98-WIL-23). The issuance of the permit was delayed because the Conservation Officer Service was investigating the matter.

The investigation indicated that the sheep was picked up with the use of a helicopter, in violation of s.27(2)(b) of the Wildlife Act. Section 2.2 of the Widlife Act Permit Regulation provides that a permit to possess wildlife can not be given where the applicant took that wildlife in violation of the Act. Mr. Beranek was issued a warning and the ministry was to retain ownership of the horns and cape.

Mr. Beranek appealed this decision on the grounds that s.27(2)(b) had no applicability to his case, that the Wildlife Manager had ample opportunity to raise this issue in the previous appeal before the Board, and that the Enforcement Manager’s decision was an attempt to circumvent the decision of the Board.

The Enforcement Manager submitted that his decision to issue a warning was not a decision made under the Act and that it could therefore not be appealed to the Board. Mr. Beranek argued that the Enforcement Manager’s decision was a decision affecting his application for a permit and therefore it was appealable under the Act. He argued that it was not the decision to issue the warning that was being appealed, but the Enforcement Manager’s decision that a permit would not be issued.

The Panel found that the Enforcement Manager had no authority to issue or to refuse permits. The Panel found that when the Enforcement Manager notified Mr. Beranek that he would not be able to obtain a permit, he was dealing with an enforcement issue and was not refusing to grant a permit. As s.101 of the Wildlife Act limits the Board’s jurisdiction to hearing appeals from decisions made by a director or regional manager, the Panel found that the Enforcement Manager’s decision was not appealable to the Board.

The Wildlife Manager requested that the Board reopen Mr. Beranek’s first appeal and reconsider its decision based on new evidence. He submitted that certain facts concerning the manner in which the horns were retrieved, and upon which the Board relied for its decision, had proven not to be true. Mr. Beranek submitted that the Board did not have authority to reopen the original appeal.

The Panel found that generally, once a tribunal has rendered a decision, its jurisdiction has been expended and the principle of functus officio applies in that it may take no further action unless it is expressly authorized to do so by statute. However, the Panel also found that the courts have ruled that a tribunal can reopen a hearing in certain circumstances.

The Panel found that the circumstances did not justify reopening its decision. The Panel was not convinced that there was truly new evidence, as the evidence was obtainable at the time the decision was made, and also found that the new information would not have changed the earlier decision. The Panel was also not convinced that either s.27(2)(b) of the Act or s.2.2 of the Regulation were intended to address the transport of horns outside of the context of a hunting expedition. The appeal was dismissed.