Professional forestry, due diligence, and the advice of specialists

Abstract

How can professional foresters ensure they practise with due diligence when they are charged with making decisions in which the advice of non-forestry specialists is one of the factors they must take into account? The case law on due diligence in Canada supports the need for appropriate expertise when potential regulatory offences are at stake. In a forestry context, the appropriate expertise is sometimes found among non-forestry specialists. As a result, professional foresters are growing increasingly reliant on the advice of such specialists. But especially in those provinces - BC, Ontario, and Quebec - with legislated exclusive professional forestry practice, professional foresters are often placed in the awkward position of having to judge the advice of specialists even when these foresters do not possess the expertise to make that judgment. Can foresters overrule the advice of non-forestry specialists? The case law on due diligence suggests they do so at their peril. By way of two hypothetical case studies, this paper highlights this dilemma, but also suggests that sharing the "decision-making space" may be a partial way to ensure that forestry decisions meet the demands of due diligence case law.