[1] Forestry Workers Lien for Wages Act, R.S.O. 1990, c.F.28 [FWLWA or the Act].

[2] Under the Act, the phrase “forestry workers” refers to loggers who harvest timber and deliver it to the mill for processing. In this Report, we also use the more common term “loggers” or “logging contractors” to describe these individuals. Unlike some other jurisdictions, the Act does not apply to mill workers.

[3] The original Act was the Woodman’s Lien for Wages Act, S.O. 1891, 54 Vict., c.22 [original Act].

[4] Ontario’s logging industry is one sector of the forest industry which encompasses logging, forestry services such as silviculture and forest management, lumber processing and pulp production. Logging involves harvesting trees and transporting them to a mill for processing. It is the first step in a chain of value that leads to manufactured wood products.

[5] Buchanan Forest Products Ltd. (Re) (2009), 58 C.B.R. (5th) 184 (Ont.S.C.J.) [Buchanan]; additional reasons (2010), 68 C.B.R. (5th) 220 (Ont. S.C.J.).

[6] Buchanan, note 5. The lien claims in Buchanan arose out of somewhat unique circumstances. Some have argued that the Buchanan insolvency was caused by questionable business practices and is not representative of the industry generally. Whether or not that is the case, it is noteworthy that no other lien claims seem to have been litigated during what was a lengthy industry-wide recession.

[7] A more detailed survey of woodworker lien claims was carried out by the Law Reform Commission of British Columbia (LRCBC) in their review of BC’s Woodworker Lien Act, now R.S.B.C. 1996, c.491 [WLA]. That survey also revealed relatively few claims being filed, although apparently more than in Ontario: LRCBC, Working Paper on Liens for Logging Work (Victoria: Ministry of the Attorney General, 1992) [1992 Working Paper], online: http://bcli.org/sites/default/files/LRC-CP68-Liens_for_Logging_Work.pdf.

[8] In 1896, Ontario’s original Act was expanded to protect logging contractors as well as employees. However, the new provision applied only to contractors working “for any licencee of the Crown”: 1896, 59 Vict. c.36, s.4 [1896 Admendment]. By 1914, the words “for any licencee of the Crown” had been  omitted from the provision, giving rise to the possibility that the Act also protected subcontractors.  This broader interpretation was rejected in Keenan Bros. v. Langdon, [1928] S.C.R. 203, 206.

[9] FWLWA, note 1, s.3.

[10] Confusion about the scope of the Act is not solely a modern problem: Edward P. Raymond, “Woodmen’s Lien Law in New Brunswick” (1906) 26 Can. L. Times 249.

[11] FWLWA, note 1, s.1. Although blacksmiths are no longer used in logging operations, there are a few logging camps still in existence and these may employ cooks.

[12] FWLWA, note 1, s.1.

[13] In Buchanan, note 5, the Court held that the definition of “logs or timber” includes woodchips. Biomass is the residual wood fibre remaining on the forest floor after harvesting has taken place. Biomass is increasingly being marketed as a renewable source of bioenergy that may be used in generating electricity.

[14] Although this is not explicit in the Act, it can be inferred from the closed definition of “logs or timber” as well as ss.13(d) which contemplates a lien claimant filing an application for attachment where “logs or timber are about to be cut into lumber or other timber so that the logs or timber cannot be identified”.

[15] FWLWA, note 1, ss. 5(4).

[16] FWLWA, note 1, ss. 5(3).

[17] FWLWA, note 1, ss. 8(1).

[18] FWLWA, note 1, ss. 9(3).

[19] The Rules of the Ontario Small Claims Court require parties to exchange the documents on which they rely for their claims: Rules 7.01 and 9.01, O. Reg. 258/98, Courts of Justice Act, R.S.O. 1990, c.C43.  However, this rule may not always be strictly enforced: Michael Rappaport, “Major Changes Coming to Ontario’s Small Claims Courts”,  The Lawyer’s Weekly (December 11, 2009), online: http://www.lawyersweekly.ca/index.php?section=article&articleid=1058. In contrast, the Superior Court of Justice Rules provide for a variety of forms of discovery including oral discovery: Rules 29.1-33, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Courts of Justice Act, R.S.O. 1990, c.C43.

[20] Several of the forestry worker claims in  the Buchanan proceeding amounted to hundreds of thousands of dollars and one claim was just under one million dollars: In re Terrace Bay Pulp Inc., Approval and Vesting Order, September 13, 2010 (Ont. Sup. Ct., Commercial List), Schedule “A”, Summary of Lien Claimants [Summary of Lien Claimants], online: http://documentcentre.eycan.com/eycm_library/Project%20Pick%5CEnglish%5CCCAA%202009%5CCourt%20Orders%5CApproval%20&%20Vesting%20Order%20of%20Justice%20Morawetz,%20dated%20September%2013,%202010.pdf.

[21] FWLWA, note 1, ss. 13, 14.

[22] FWLWA, note 1, s. 18.

[23] FWLWA, note 1, ss. 3(1).

[24] FWLWA, note 1, s. 7.

[25] In the costs proceeding following the Buchanan decision, Senior Regional Justice Pierce held that these cost caps do not apply to a common issues hearing: (2010), 68 C.B.R. (5th) 220 (Ont.S.J.) at para.7.

[26] FWLWA, note 1, s. 25. In Small Claims Court proceedings, costs are capped at $5 for contested claims and $2 for uncontested claims.

[27] Lakes and Rivers Improvement Act, R.S.O. 1990, L.3. Section 24 provides for the removal of log jams to further the purposes of the Act. However, there is no mention of the separation of logs or timber.

[28] FWLWA, note 1, s. 2.

[29] “Logging in the Ottawa Valley – The Ottawa River and the Lumber Industry” in A Background Study for Nomination of the Ottawa River Under the Canadian Heritage Rivers System, Ottawa River Heritage Designation Committee (2005) 89, 98, online: http://www.ottawariver.org/pdf/0-ORHDC.pdf

[30] Ian Radforth, Bushworkers and Bosses: Logging in Northern Ontario 1900-1980 (Toronto: University of Toronto Press, 1987) 13 [Radforth, Bushworkers].

[31] Radforth, Bushworkers, note 30, 97.

[32] Radforth,  “The Shantymen”, in Labouring Lives: Work and Workers in Nineteenth Century-Ontario (Toronto: University of Toronto Press, 1995), 221 [Radforth, “Shantymen”].

[33] Radforth, Bushworkers, note 30, 66.

[34] Workmen’s Compensation Act, S.O. 1914, c.25. The previous statute required injured employees to sue their employer in court: Workmen’s Compensation for Injuries Act, S.O. 1886, 49 Vict., c. 28.

[35] Radforth, Bushworkers, note 30, 42.

[36] In some cases, woodworkers would be required to pay a bribe in order to be hired on: Radforth, Bushworkers, note 30, 35.

[37] Radforth, Bushworkers, note 30, 4.

[38] Radforth, Bushworkers, note 30, 107-108.

[39] Radforth, “Shantymen”, note 32, 237-239. Lumber companies owning mills would set up logging operations in the bush and hire foremen to run these operations. The foreman was typically responsible for recruiting a complement of loggers each season.

[40] Radforth, “Shantymen”, note 32, 249.

[41] Jeremy Webber, “Labour and the Law” in Paul Craven, ed., Labouring Lives: Work and Workers in Nineteenth Century-Ontario (Toronto: University of Toronto Press, 1995) 126; Radforth, Bushworkers, note 30, 41.

[42] Radforth, “Shantymen”, note 32, 250-251.

[43] Radforth, “Shantymen”, note 32, 251.

[44] See, for example, David Lee, Lumber Kings and Shantymen: Logging, Lumber and Timber in the Ottawa Valley (Toronto: James Lorimer & Company Ltd., 2006) 200-202.

[45] George B. Engberg, “Lumber and Labor in the Lake States” (March 1959) 36 Minnesota History 153, 165, online: http://collections.mnhs.org/MNHistoryMagazine/articles/36/v36i05p153-166.pdf.

[46] James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836 – 1915 (Cambridge: The Belknap Press of Harvard University Press, 1964) 391.

[47] See McDonnell v. Cook (1845), 1 U.C.Q.B. 542 for an example of workers holding a third party owner to account for their unpaid wages. Also see R.C.B. Risk, “The Golden Age: The Law About the Market in Nineteenth Century Ontario” (1976) 3 U.T.L.J. 307, 309. Other cases regarding early liens are collected at footnote 163 in Webber, note 41.

[48] Buchanan, note 5.

[49] Ontario Legislative Assembly, Newspaper Hansard (4 April 1891), referring to the Mechanics Lien Act, R.S.O. 1887, c. 126.

[50] Brooks-Sanford Co. v. Theodore Telier Construction Co. (1910), 22 O.L.R. 176 (C.A.) at para. 5.

[51] Ontario Legislative Assembly, Newspaper Hansard (14 April 1891). “Jobbers” were contractors retained by lumber companies (often located in Michigan) to run Ontario logging operations on their behalf: personal communication with Ian Radforth (February 7, 2013).

[52] Ontario Legislative Assumbly, Newspaper Hansard (25 April 1891).

[53] FWLWA, note 1, s.32.

[54] Radforth, “Shantymen”, note 32, 211.

[55] This provision was first passed in 1898: HV Nelles, “The Manufacturing Condition” in The Politics of Development: Forests, Mines and Hydro-Electric Power in Ontario, 1849-1941, 2d. ed., McGill-Queen’s University Press, 2005) 48, 65-87. It remains in force today: Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25, s.30 [CFSA].

[56] See Hurst, note 46. The Wisconsin legislation was first introduced in 1849, predating the Ontario legislation by over 40 years. Industry conditions in the two jurisdictions were similar and it seems reasonable to assume that similar policy considerations underlay both acts. Certainly, the Ontario legislature was aware of lien legislation elsewhere as indicated by its reference to Michigan’s version of the statute during debates.

[57] Carpenter v. Bayfield Western R. Co., 83 N.W. 764 (Wis. 1900), quoted in Hurst, note 46, 408.

[58] Hurst, note 46, 409, citing Winslow v. Urquhart, 44 Wis. 197 (Wis. 1878).

[59] Ontario practice is that local timber is processed in Ontario mills unless there is no local market for it. Less than 4% of timber is shipped to mills outside Ontario: Ontario Ministry of Natural Resources (MNR), Strengthening Forestry’s Future: Forest Tenure Modernization in Ontario, 12, online: http://www.mnr.gov.on.ca/stdprodconsume/groups/lr/@mnr/@forests/documents/document/stdprod_092158.pdf.

[60] Logging plays a significant role in the economies of other Canadian provinces to varying degrees. British Columbia and Quebec are the two top producers of forest products with Ontario a close third. British Columbia’s industry is the largest by a significant margin. It is divided into two distinct regions – coastal logging and interior logging. It has also established a complex regulatory regime including, for example, more than eight different types of forest licences.

[61] Canadian Forest Service, The State of Canada’s Forests, 2012 Annual Report (Natural Resources Canada) 14, online: http://cfs.nrcan.gc.ca/pubwarehouse/pdfs/34055.pdf.

[62] Canadian Forest Service, note 61; Ontario Ministry of Natural Resources, State of Ontario’s Forests, 2011, Indicator Report, 5.2.2, Trends in Forest-related Employment, 3, online: http://www.web2.mnr.gov.on.ca/mnr/forests/public/publications/SOF_2011/indicators/522.pdf. The forest industry includes logging, pulp and paper manufacturing, wood product manufacturing, furniture manufacturing as well as support activities such as silviculture, forest management.

[63] Ontario Ministry of Natural Resources, State of Ontario’s Forests, 2011, Indicator Report, 6.2.1, Resilience of Forest-based Communities, 7, online: http://www.web2.mnr.gov.on.ca/mnr/forests/public/publications/SOF_2011/indicators/621.pdf.

[64] Jake Wilson and John Graham, Relationships Between First Nations and the Forest Industry: The Legal and Policy Context, Report for the National Aboriginal Forestry Association (Institute on Governance, 2005) 53, online: http://iog.ca/wp-content/uploads/2012/12/2005_March_prov_forestry.pdf.

[65] Radforth, Bushworkers, note 30, 203-204.

[66] Radforth, Bushworkers, note 30, 207, 263.

[67] Radforth, Bushworkers, note 30, 214-215. Also see Patricia Marchak, “Labour in a Staples Economy” (1979) 2 Studies in Political Economy 7, 15.

[68] For some important differences remaining between mechanized logging work and factory work, see Richard A. Rajala, “The Forest as Factory: Technological Change and Worker Control in the West Coast Logging Industry, 1880-1930” (1993) 32 Labour/Le Travail 73, 80-81.

[69] Radforth, Bushworkers, note 30, 220. According to Statistics Canada, there were 7,321 loggers in Ontario in 2006. This number steadily decreased to 3,674 loggers in 2010 but rose slightly to 4,228 loggers in 2011: Statistics Canada, Table 301-0007, “Logging industries, principal statistics by North American Industry Classification System (NAICS) annual”, CANSIM (database). Also see Gregg Delcourt and Bill Wilson, “Forest Industry Employment: A Jurisdictional Comparison” (1998) 24 Canadian Public Policy S11, S19 and S23.

[70] For a case study of the changing circumstances of an individual logger over 30 years in Newfoundland’s logging industry, see Peter R. Sinclar, Martha MacDonald and Barbara Neis, “The Changing World of Andy Gibson: Restructuring Forestry on Newfoundland’s Great Northern Peninsula” (2006) 78 Studies in Political Economy 177. At 187, the article identifies the following key events affecting loggers: “logging camps run by mills were replaced by locally based, mobile crews hired by logging contractors; unionization of the labour force decreased; piecework became predominant; mechanical harvesters replaced many loggers, changed the labour process, and reduced demand for labour; servicing personnel became more important; loggers increasingly bore the costs of their equipment; and wood supply became a vital issue.”

[71] Radforth, Bushworkers, note 30, 230-231.

[72] Radforth, Bushworkers, note 30, 234.

[73] Radforth, Bushworkers, note 30, 235.

[74] A U.S. study found that 74 per cent of logging contractors operating in the Northwest states operated with five employees or fewer: Travis T. Allen, Han-Sup Han, Steven R. Shook, “A Structural Assessment of the Contract Logging Sector in the Inland Northwest” (2008) 58 Forest Products Journal 27.

[75] Statistic quoted by an industry stakeholder during consultations. This distinguishes modern logging contractors from the early contractors covered by the Act who may have owned a saw or a team of horses but contracted primarily for their labour.

[76] All trees harvested in Ontario must be manufactured within Canada: CFSA, note 55, s.30.

[77] Ontario Ministry of Natural Resources (MNR), State of Ontario’s Forests, 2011, 18, online: http://www.mnr.gov.on.ca/stdprodconsume/groups/lr/@mnr/@forests/documents/document/stdprod_101907.pdf.

[78] MNR, note 77, 57-60; also see the accompanying Indicator Reports, notes 62 and 63.

[79] Canadian Forest Service, note 61, 42.

[80] The LCO heard in consultations that modern quality stan