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Appeals from the Wildfire Act - 2012
2008-WFA-005(a)
Louisiana-Pacific Canada Ltd. v.
Government of British Columbia
Decision Date:
January 10, 2012
Panel:
Robert Wickett, Bruce Devitt, Al Gorley
Keywords:
Wildfire Act
– s. 29; Wildfire
Regulation – ss. 23(3), 23(4); burn plan;
prescribed fire; penalty; due diligence; officially
induced error
Louisiana-Pacific Canada Ltd. (“LP”) appealed a
determination issued by the Manager, South East Fire
Centre, Ministry of Forests and Range (the “Ministry”),
that LP had contravened two sections of the Wildfire
Regulation (the “Regulation”).
The contraventions were in relation to a prescribed burn
ignited by LP under a plan that was approved by the
Ministry. The plan authorized LP to burn slash on a
cutblock. The plan did not include a “wet line”, which
involves sprinklers and/or personnel with water hoses to
contain the fire. Rather, Mr. King, LP’s manager in
charge of the prescribed burn, retained a retired
Ministry staff with firefighting expertise (the
“Consultant”) to assist in planning and supervising the
burn.
On September 27, 2006, the burn was ignited following a
test burn, based on instructions from Mr. King with the
Consultant’s concurrence. Immediately, the fire began
burning much more intensely than expected, and large
fuels ignited. The Consultant concluded that the fire
could not be controlled and would escape the intended
burn area. Mr. King was unable to start the two water
pumps at the burn site. In an attempt to minimize what
they considered to be the fire’s inevitable escape, the
Consultant suggested that they ignite an area adjacent
to the burn site, to burn off fuel and attempt to pull
the two fires towards one another at the centre of the
cutblock. Mr. King accepted that advice and ignited the
adjacent area, but that did not contain the fire. Mr.
King remained at the site until dark, at which time the
fire appeared to be stable. On September 28, 2006, LP
took some further steps to contain the fire, including
requesting a helicopter and Ministry firefighters to
help fight the fire. The helicopter arrived late in the
day. That evening, high winds caused a spot fire in an
adjacent cutblock.
On September 29, 2006, the Ministry firefighters began
working at the site. On September 30, no effort was made
to fight the fire due to severe winds. The fire
continued to spread over the next few days, as more spot
fires ignited. The fire was fully extinguished by rain
and snow on October 6, 2006. In total, 47.6 hectares of
Crown land were affected by the fire, and 8388 cubic
metres of Crown timber were destroyed or damaged.
Following a Ministry investigation, the Manager issued
the determination and penalties. He found that LP had
contravened: section 23(3)(a) of the Regulation by
igniting the area outside of the prescribed burn area in
an attempt to stop the escape, when such action was not
necessary or required; section 23(3)(b) of the
Regulation by allowing the fire to escape; and section
23(4)(a) of the Regulation by failing to immediately
carry out fire control and extinguish, if practicable,
the escaped prescribed burn. The Manager also found that
LP could not rely on the statutory defences of due
diligence or officially induced error. The Manager
levied a penalty of $10,000 against LP for contravening
section 23(3), a further penalty of $10,000 for
contravening section 23(4), and he required LP to pay
$1,128.18 for Crown resources that were damaged or
destroyed as a result of the contraventions.
The Commission found that igniting the area adjacent to
the intended burn area was not part of the burn plan.
However, the Commission also found that igniting the
adjacent area was a response to the immediate concern of
an escape, and as such, was not the result of
misunderstanding or disregarding the burn plan. In that
context, the Commission held that LP’s actions were not
the type of “mischief” that is intended to be addressed
by section 23(3)(a) of the Regulation. The Commission
found that Mr. King and the Consultant reasonably
concluded that the fire was out of control, and that
immediate fire control action was necessary to mitigate
damage from the anticipated escape. Consequently, the
Commission concluded that igniting the adjacent area did
not breach section 23(3)(a) of the Regulation. However,
the Commission held that there was no dispute that LP
allowed the fire to escape the intended burn area,
contrary to section 23(3)(b) of the Regulation.
Next, the Commission considered whether LP failed to
immediately carry out fire control and extinguish the
fire, if practicable, once the fire escaped. The
Commission found that, when LP ignited the prescribed
burn, it did have all of the resources on site that were
required by the burn plan to prevent an escape.
Specifically, LP did not have the required number of
personnel, length of hose, or a 1000-litre portable
water tank. The Commission concluded that LP did not
immediately undertake fire control activities on
September 27 or 28, 2006, before the onset of high
winds, contrary to section 23(4)(a) of the Regulation,
because LP was not in a position to do so.
Regarding the statutory defences, the Commission found
that the defence of due diligence did not apply to LP,
because the contraventions were foreseeable, and LP
lacked a proper system and procedures to avoid the
contraventions. The Commission also found that LP failed
to check the moisture level in large fuels at the site
before igniting the prescribed burn. In addition, the
Commission found that the defence of officially induced
error did not apply, because there was no evidence of
any erroneous representation of law by the Ministry in
relation to LP, and there was no evidence of a mistake
of fact.
In addition, the Commission rejected LP’s arguments that
the Manager was biased, and that there was an excessive
delay in the Ministry’s investigation and issuance of
the determination.
Finally, the Commission concluded that the penalty
should be reduced by $5,000 based on its finding that LP
did not breach section 23(3)(a) of the Regulation.
Accordingly, the appeal was allowed, in part.
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