Appeals from the Wildfire Act - 2011
2008-WFA-001(a) & 002(a) Canadian National Railway v.
Government of British Columbia
June 27, 2011
Alan Andison, Les Gyug,
Wildfire Act – ss. 3(1), 27; Wildfire Regulation – s. 9; Forest Act –
ss. 103(1), 103(3), 105(1); forest fire; penalty;
damaged or destroyed timber; stumpage
Canadian National Railway
(“CNR”) appealed two determinations issued by the Fire
Centre Manager (the “Manager”), Kamloops Fire Centre,
Ministry of Forests and Range.
In the first determination, the Manager found
that CNR had contravened section 3(1) of the
and sections 9(a), (b) and (c) of the Wildfire
Regulation in relation to railway operations that
caused a wildfire (“Fire 135”).
The Manager levied
penalties of $1,000 for the contravention of the
and $10,000 for the contraventions of the
Wildfire Regulation. The
Manager also ordered CNR to pay $254,680.38 in damages
for Crown timber that was burned in Fire 135, which was
75 percent of the total stumpage value of the timber, as
calculated by the Manager.
In the second determination, the Manager found
that CNR had contravened
section 9(a) of the Wildfire Regulation in
relation to railway operations that caused another
wildfire (“Fire 136”).
135 occurred near Ashcroft, BC, and was reported on the
evening of July 29, 2005.
The fire was caused by hot metal fragments
falling from the dragging brake of a CNR railway car.
The hot fragments ignited vegetation on the
Shortly after the fire was reported, the Ministry
dispatched initial attack crews and aircraft to
extinguish the fire.
The following day, the fire escaped from the
right-of-way and expanded to cover an area of
approximately 40 square kilometres.
The fire damaged or destroyed 25,010.8 cubic
metres of mature Crown timber.
Approximately one year after the fire, a licensee
harvested the area and paid $4,874.80 in stumpage for
harvesting 19,809.79 cubic metres of salvaged timber.
Before the appeals were heard, the parties settled
The parties agreed that Fires 135 and 136 were
caused by a single act and that there were no
contraventions in relation to Fire 136, and therefore,
the appeal of the second determination should be
relation to Fire 135, the parties agreed that CNR had
section 9(a) of the Wildfire Regulation, and CNR
agreed to pay the $10,000 penalty.
The remaining issue to be decided by the Commission was
the value of the Crown timber that was burned in Fire
parties agreed on the volume of timber that had been
damaged or destroyed by Fire 135, but they disagreed on
the applicable valuation date for calculating the value
of the timber.
CNR argued that the timber value should be
calculated based on the stumpage rate that applied on
the date that the salvaged timber was scaled, and that
the Manager had jurisdiction to reduce the amount to 75
percent of the timber value.
In addition, CNR submitted that it should not
have to pay any amount for the timber, because stumpage
was paid when the timber was salvaged.
The Government argued that the timber value
should be calculated based on the stumpage rate that
would have applied on the date that the fire ignited,
that the Manager had no jurisdiction to reduce the
amount to 75 percent of the timber value, and that the
claim against CNR for timber value under the Wildfire
Act is unrelated to the stumpage revenue that was
collected when the timber was salvaged.
Commission found that section 27(1)(c) of the
Wildfire Act together with section 30(a) of the
Regulation require that, when a cost recovery order
is made, the value of the Crown timber damaged or
destroyed as a result of the contravention must be
calculated by ascertaining the amount of stumpage
applicable to that timber under the
Forest Act. The
Commission found that section 103(3) of the
should be applied, because it describes the procedure
for calculating the amount of stumpage owing when a
person “cuts, damages, destroys or removes Crown timber
The Commission also found that section 103(3)
contemplates using the stumpage rate that “would likely
have applied to the timber” under section 105(1) of the
Forest Act “if
rights to the timber had been granted under an agreement
entered into under” the
Forest Act. The
Commission interpreted this to mean that the applicable
stumpage rate is the one that would have applied when
the timber might have been harvested.
Given that no
cutting permit was in place when the fire occurred, the
Commission concluded that the appropriate stumpage rate
for valuing the timber in this case is not the one that
would have applied when the fire occurred; rather, it is
the stumpage rate that would likely have applied in the
Based on the parties’ submissions, the most likely
possible future rate is the one that applied when the
timber was cruised or scaled; namely, $0.25 per cubic
addition, the Commission found that the Manager had no
statutory authority to reduce the value of the damaged
or destroyed timber to 75 percent of its stumpage value.
Section 27(1)(c) of the
requires the timber value to be calculated in the
The prescribed manner is set out in section 30 of
Regulation, and it refers to the
None of the legislation authorizes the Manager to
reduce the value of the damaged or destroyed timber for
the reasons given by the Manager.
Finally, the Commission found that nothing in the
relevant legislation indicated that the stumpage revenue
paid when the licensee salvaged the damaged timber
should be applied as a “credit” when assessing damages
against CNR for causing the fire that damaged the
summary, by consent of the parties, the Commission
rescinded: the determination regarded Fire 136; the
finding that CNR contravened section 3(1) of the
the associated $1,000 penalty; and, the finding that CNR
contravened section 9(b) and (c) of the
Also by consent of the parties, the Commission
confirmed the finding that CNR contravened section 9(a)
of the Wildfire
Regulation, and it confirmed the associated $10,000
Commission varied the amount that CNR was required to
pay under section 27(1)(c) of the
for the damaged and destroyed timber, and directed the
Manager to re-assess those damages to 100 percent of the
timber value based on the stumpage rate that applied on
the date the timber was scaled.
Accordingly, the appeal in relation to Fire 136 was
allowed, by consent (Appeal No. 2008-WFA-002).
The appeal in relation to Fire 135 (Appeal No.
2008-WFA-001) was allowed, in part.
Louisiana-Pacific Canada Ltd. v. Government of British
May 17, 2011
James Hackett, Blair Lockhart, Reid White
– ss. 22(3), 22(4); fuel break; fire escape; burn area;
out of control; notice of investigation; due diligence
Ltd. (“LP”) appealed a contravention order and
administrative penalty/cost recovery order issued by the
Fire Centre Manager (the “Manager”),
Southeast Fire Centre, Ministry of Forests and Range.
The Manager determined that LP contravened
sections 22(3) and 22(4)(a), (b) and (c) of the
Regulation (the “Regulation”)
by failing to ensure that its category 3 open fires did
not escape, and by failing to take the required actions
when the fires spread beyond the burn area or otherwise
became out of control.
The Manager levied penalties totalling $4,230 for
The alleged contraventions occurred when LP staff
ignited some logging debris piles in a cutblock in late
When the piles were ignited, LP staff considered
the snow present on the cutblock to be a fuel break that
would prevent the fires from spreading.
One day after the fires were ignited, LP staff
checked the cutblock and found that the fires had spread
beyond the piles and into the fuel break.
However, LP staff decided that an adequate fuel
break of snow was still in place and the fires would not
spread any further.
A few days later, Ministry staff visited the
cutblock and found that the fires had burned beyond the
piles and had burned approximately 3 hectares of
seedlings in the cutblock.
Ministry staff observed smoke coming from the
piles and from other areas in the cutblock where the
fires had spread.
The next day, Ministry staff asked LP staff
several questions about the fires, which LP staff
All of the fires self-extinguished before November 2007.
In February 2008, the Manager advised LP that the
Ministry was investigating whether LP had contravened
the Regulation. The Manager
issued the orders in October 2009.
LP appealed on the grounds that the fires did not
“escape” because they did not go beyond the cutblock
boundaries and did not escape the “burn area”, and they
were not “out of control” within the meaning of the
LP also argued that the determination process was
unfair because the Ministry did not notify LP of the
investigation until well after the relevant events had
Further, LP submitted that if the contraventions
occurred, the defence of due diligence applied.
The Commission considered the following issues: (1)
whether the Ministry’s failure to notify LP until
February 2008 that it was investigating the fires
tainted or nullified the determination process such that
the orders should be rescinded; (2) whether LP
contravened sections 22(3) or 22(4) of the
(3) if LP contravened the
whether any defences apply; and (4) if no defences
apply, whether the penalties are appropriate in the
The Commission unanimously found that the Ministry’s
failure to formally notify LP of the investigation until
February 2008 did not taint or nullify the determination
process such that the orders should be rescinded.
The Commission held that, although it would have
been helpful to LP if the Ministry had notified it of
the investigation as soon as the Ministry suspected a
possible contravention, the most important and relevant
evidence was in relation to the events that occurred
during the first two days after the fires were lit.
When the Ministry initially contacted LP about
the fires, the fires were 4 days old, the spreading had
already occurred, and the risk of further spreading was
the evidentiary basis for the contraventions, the timing
of the Ministry’s notification was not fatal to the
enforcement proceedings and the orders.
With regard to the remaining issues, the Commission was
divided on its findings.
On the issue of whether LP contravened sections 22(3) or
22(4) of the
Regulation, the majority of the Commission found
that the fires did not “escape” within the meaning of
Although the fires did spread beyond the burn
area into the cutblock, they did not spread into the
surrounding timber or grass land, and there was no
damage to the environment, public property, private
property or other values protected by the legislation.
The majority also held that the fires were not
“out of control” within the meaning of section 22(4).
In the context of the
Regulation, “out of control” means beyond the capacity of the people
or equipment required to be present, or the site
conditions, to prevent further spread of the fire into
forest land or other values that are protected by the
The requirements in section 22(4) to take fire control
action and report a fire are triggered when a fire is
beyond the burn area and is out of control, and in this
case those requirements were not triggered because the
fire was not out of control.
Since the fire did not “escape” and was not “out
of control”, there were no contraventions of sections
22(3) or 22(4) of the
Accordingly, the majority of the Commission concluded
that the contraventions and penalties should be
Therefore, the majority did not need to consider the
The minority of the Commission would have confirmed the
orders and the penalties.
The minority found that an “escape” occurs when a
fire is no longer contained in the burn area that is
bounded by a fuel break.
In this case, the fires spread beyond the fuel
break, and although the consequences were mainly
detrimental to LP’s interests, in that it had to replant
the burned seedlings, there was a contravention of
section 22(3) and enforcement action was appropriate.
The minority also held that section 22(4) was
contravened, because spreading beyond the burn area
constitutes being “out of control”, and LP did not take
action to contain, extinguish or limit the spread of the
fire, or report it as soon as practicable.
The minority also held that LP failed to
establish the defence of due diligence, and that the
penalties were appropriate in the circumstances.
In accordance with the majority’s decision, the appeal