Appeals from the Wildfire Act - 2020

2019-WFA-005(a) Troy Howard Nelson v. Government of British Columbia

Decision Date: November 23, 2020

Panel: Jeff Hand

Keywords: Wildfire Act – s. 25; Wildfire Regulation – s. 31; wildfire; cost recovery order; fire suppression costs; holdover fire

Troy Howard Nelson appealed an order issued in April 2019 by the Deputy Fire Centre Manager (the “Manager”), Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”).

On March 22, 2016, the Appellant burned an area of grass on his property located near Dawson Creek, BC. The next day, he and his wife put out any observable hotspots. Smoke was observed in the area of an old tree stump. The Appellant continued to observe the area for several days. By April 4, 2016, he no longer observed any smoke or other signs of fire.

On April 18, 2016, there was high winds. That afternoon, a wildfire was observed on the Property, and it spread to adjacent Crown land. The Appellant fought the fire, with assistance from local fire officials, until the BC Wildfire Service arrived on April 19. The wildfire was declared under control that day, but it continued to burn until it was declared out on June 20, 2016. The final size of the wildfire was approximate 475 hectares. The BC Wildfire Service investigators determined that the wildfire had originated on the Appellant’s property in the vicinity of a stump where a ‘holdover’ fire from the grass fire had smouldered underground.

After giving the Appellant an opportunity to be heard, the Manager determined that the grass fire lit by the Appellant caused a ‘holdover’ fire in the stump, that later caused the wildfire. The Manager ordered the Appellant to pay $349,445.17 for the government’s fire control costs in relation to the wildfire, under section 25 of the Wildfire Act and section 31 of the Wildfire Regulation.

The Appellant appealed the order. He submitted that the hearing before the Manager was unfair, and the Manager failed to consider the possibility that a trespasser had caused the holdover fire that led to the wildfire. He requested that the Commission rescind the order.

The Commission found that any procedural unfairness during the hearing before the Manager was cured by the appeal process, which was conducted as a new hearing of the matter. The Appellant had a full opportunity to lead evidence, respond to the Government’s evidence, and make submissions in support of his appeal.

In addition, the Commission found that although there was evidence that trespassers had historically entered the Appellant’s property, there was no evidence that trespassers were present on the day the wildfire was discovered or during the time after the Appellant’s grass fire. Speculation that a trespasser might have been in the area where the wildfire originated, which was difficult to access, was insufficient to rebut the wildfire investigator’s evidence that the Appellant’s grass fire caused the wildfire.

Accordingly, the Commission confirmed the Manager’s order and dismissed the appeal.

2019-WFA-002(a) Tolko Industries Ltd. v. Government of British Columbia

Decision Date: August 14, 2020

Panel: Darrell Le Houillier

Keywords: Wildfire Act – ss. 6(1), 10(4); Wildfire Regulation – ss. 22(2), 22(3); Administrative Tribunals Act – ss. 34(3)(b); cost recovery order; contravention; penalty; document disclosure application

Tolko Industries Ltd. (“Tolko”) appealed a decision that it had contravened the Wildfire Act and the Wildfire Regulation, and had to pay an administrative penalty, the cost of the government’s fire control costs, the value of damaged or destroyed Crown resources, and reforestation costs.

In late 2015 and early 2016, Tolko was doing work in the Quesnel Forest District and the Cariboo-Chilcotin Forest District. This work included having a contractor burn debris piles. The burns were authorized by permits. In April 2016, four wildfires occurred in those regions.

The Deputy Fire Centre Manager (the “Manager”) of the Coastal Fire Centre, Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”), determined that the wildfires were caused by the open burning of debris by Tolko’s contractor. The Manager found that Tolko had contravened sections 6(1) and 10(4) of the Wildfire Act and sections 22(2) and 22(3) of the Wildfire Regulation. The Manager ordered Tolko to pay a $15,000 administrative penalty, cost recovery of $343,495.20 for the government’s fire control costs, $84,937 for damaged or destroyed Crown resources, and $46,223 for reforestation costs.

Tolko appealed the Manager’s decision. Tolko appealed on numerous grounds.

After filing its appeal, Tolko asked to amend it Notice of Appeal by adding additional grounds of appeal. Tolko also applied to the Commission for an order requiring the Ministry to disclose certain categories of documents before the hearing of the appeal commenced.

Given that the Manager did not oppose Tolko’s request to amend it Notice of Appeal, the Commission granted that request.

Next, the Commission considered whether to grant the order for document disclosure. The main issue was whether the requested categories of documents may be relevant to proving, or responding to, an issue in the appeal. The Commission found that some, but not all, of the requested documents were relevant. Both parties agreed that some of the documents may be redacted to remove sensitive information. Consequently, the Commission ordered the disclosure of some, but not all, of the requested categories of documents, subject to the redaction of certain sensitive information.

Accordingly, the application for document disclosure was allowed, in part.

2019-WFA-004(a) J. Sarver Trucking Ltd. v. Government of British Columbia

Decision Date: April 27, 2020

Panel: Darrell Le Houillier

Keywords: Wildfire Act – s. 6(1); Administrative Tribunals Act – ss. 34(3)(b), 40; contravention; cost recovery order; administrative penalty; document disclosure application; personal information; privacy; confidentiality; privilege

J. Sarver Trucking Ltd. (the “Company”) held a timber sale licence in the Peace Region of the Province. In early 2016, the Company completed harvesting in a cutblock, and received authorization to burn debris piles at the site. On or about April 8, 2016, the Company’s owner and an associate went to the cutblock to burn some remaining debris piles. After lighting the piles, they remained on site for most of the day and left in the afternoon. Mr. Sarver had planned to return to the site the following day, but he did not return.

On April 18, 2016, the Prince George Fire Centre discovered wildfire #880046 (the “Wildfire”). The Wildfire reached a final size of 15,739 hectares. Investigators from the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”) determined that the Wildfire had ignited and spread from burn piles on the Company’s cutblock.

The Manager of the Ministry’s Kamloops Fire Centre determined that the unattended burn piles on the cutblock had caused the Wildfire in contravention of section 6(1) of the Wildfire Act. The Manager ordered the Company to pay the government’s fire suppression costs associated with the Wildfire, totalling almost $12,000,000, and $3,697,908.74 for the value of Crown timber and other forest land resources that were damaged or destroyed as a result of the contravention. The Manager also imposed an administrative penalty of $20,000 against the Company.

The Company appealed the Manager’s determination and order.

Before the appeal was heard, the Company applied to the Commission for an order requiring the Manager to produce unredacted copies of Fire Origin and Cause Reports for four other wildfires. The Company submitted that at least 10 wildfires were deliberately set in the Peace Region on April 18, 2016, and the Wildfire may have also been caused by arson. In addition, the Company submitted that the reports might assist in attacking the quality of the Ministry’s investigation of the Wildfire.

The Manager submitted that two of the reports were irrelevant, as neither fire was arson-related and both were discovered after April 18, 2016. The Manager opposed the disclosure of unredacted copies of the other two reports based on concerns about the protection of third parties’ personal information. The redacted information identified landowners, neighbours, and persons who reported the wildfires in question. The Manager argued that people would be less likely to report wildfires, and be candid in doing so, if they knew that their personal information could be disclosed in unrelated litigation.

The Commission considered whether the reports may be relevant to proving, or responding to, an issue in the appeal. There was no question that the Manager had possession and control of the reports.

The Commission found that the reports met the threshold of relevance for disclosure. The reports would allow the Company to compare the investigations of other wildfires discovered in and around the same time and place as the Wildfire. The comparison might advance the Company’s case or allow the Company to attack the opposing case.

Regarding third parties’ personal information in the reports, the Commission concluded that this information may be relevant to the appeal. The Company might discover information from the third parties that could assist in assessing the adequacy or accuracy of wildfire investigations at the relevant time. Furthermore, the Commission noted that “informant privilege” only arises where the police guarantee protection and confidentiality to an informant in a criminal investigation exchange for useful information. Here, there was no guarantee of protection and confidentiality in investigations of wildfires. The risk to witnesses here was less than the risk incurred by those who report criminal matters to the police.

Accordingly, the Commission ordered the Manager to disclose unredacted copies of the reports, but the Commission required the Company and its legal counsel to maintain the confidentiality of identifying information in the reports and to use it only for the purposes of the appeal.

Accordingly, the application for document disclosure was granted, subject to those conditions.

2018-WFA-002(a) Canadian National Railway Company v. Government of British Columbia

Decision Date: March 12, 2020

Panel: Norman E. Yates, Les Gyug, Lorne Borgal

Keywords: Wildfire Act – ss. 6, 27; Wildfire Regulation – ss. 6(2), 6(3), 31(1); wildfire; contravention; cost recovery order; fire suppression costs; damaged or destroyed Crown resources; other forest land resources; grass land resources; payroll loading costs; agreed statement of facts

Canadian National Railway Company (“CN”) appealed an order issued in May 2018 by the Fire Centre Manager (the “Manager”), Prince George Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”).

The order arose from the following circumstances. On June 11, 2016, a wildfire ignited adjacent to CN’s railway tracks across the Fraser River and south of Lytton, BC. Grass adjacent to the railway was ignited by sparks from CN’s activities. The wildfire spread to adjacent Crown land. Firefighting crews responded from the Ministry’s Wildfire Service. The wildfire burned a large area of Crown land, and the provincial government incurred significant costs to suppress it.

The Manager determined that CN caused the wildfire in contravention of section 6(2) of the Wildfire Act (the “Act”), and sections 6(2) and (3) of the Wildfire Regulation (the “Regulation”). The Manager ordered CN to pay: a $75,000 administrative penalty for the contraventions; the government’s costs to control the wildfire ($7,073,317.07); the value of Crown timber, other forest resources, and grass land resources that were damaged or destroyed in the wildfire ($8,971,289.75); and, the government’s costs for silviculture and reforestation ($169,065.31).

CN appealed the order. CN accepted responsibility for the contraventions and the administrative penalty. CN did not dispute the amounts assessed in the order for the value of damaged or destroyed Crown timber, and silviculture and reforestation. However, CN disputed the amounts assessed for fire control costs, and “other forest land resources” and “grass land resources” that were damaged or destroyed by the wildfire. CN’s main argument was that it should not be liable for the entire area that was burned—and the associated fire control costs and damaged or destroyed grass land and other forest land resources—because the Wildfire Service’s approach to controlling the wildfire caused the burnt area to increase in size. In addition, regardless of the outcome on that argument, CN questioned the amount assessed for “payroll loading costs” as part of the government’s fire control costs.

First, the Commission considered whether any portion of the wildfire did not result from CN’s contraventions, but rather from actions or decisions by the Wildfire Service, and should not be included when calculating the area damaged or destroyed by the wildfire and associated fire control costs. The Commission found that it has the jurisdiction to consider the amount of the government’s fire control costs “that resulted, directly or indirectly, from the contravention”, and the dollar value of the specified Crown resources “damaged or destroyed as a result, directly or indirectly, of the contravention”, as stated in sections 27(1)(b) and (c) of the Act. Those sections require those amounts to be calculated “in the prescribed manner” found in sections 30 and 31 of the Regulation. The Commission found that it may consider whether the amounts assessed in the order fit within the scope of the language used in section 27 of the Act and sections 30 and 31 of the Regulation. The Commission’s role is not to critique, with the benefit of hindsight, whether the Wildfire Service could have controlled a wildfire in a different manner that may have reduced the burnt area or resulted in lower associated fire control costs. Based on the evidence, the Commission found that all of the burnt areas and associated fire control costs resulted “directly or indirectly” from CN’s contraventions, and were within the scope of sections 27(1)(b) and (c) of the Act. Furthermore, the Commission held that even if it was wrong about the scope of its jurisdiction in an appeal of this type of order, it would not have found that the Wildfire Service should have taken a different approach to controlling the wildfire.

Next, the Commission considered how many hectares of “other forest land resources” and “grass land resources” were damaged or destroyed by the wildfire, and the value assigned to them under the Act and the Regulation. Based on the parties’ evidence and the relevant legislation, the Commission found that no burned areas within the wildfire’s perimeter should be classified as “grass land resources”. The Commission found that some of the areas classified as grass land resources (valued at $500 per hectare under the Regulation) should be reclassified as “other forest land resources” subject to a visual quality order (valued at $5,000 per hectare under the Regulation), and the remainder should be classified as non-vegetated land (which has no dollar value under the Regulation). Consequently, the Commission varied the order by reducing the value of damaged or destroyed grass land resources to zero, and increasing the value of damaged or destroyed other forest land resources to $9,378,600 from $8,919,100.

Finally, the Commission considered whether the Manager could order CN to pay “payroll loading costs” as part of the government’s fire control costs under section 31(1) of the Regulation. On this issue, the parties provided an agreed statement of facts that corrected certain calculation errors in the order. The Commission held that the Regulation is clear that some amount is to be billed for payroll loading costs as part of the “wages” of government employees who respond to a wildfire, and the Province has discretion to choose a method for determining the rates charged for “wages”, which includes payroll loading costs. With no evidence of a different way to assess payroll loading costs, the Commission accepted the corrected amount for payroll loading costs set out in the agreed statement of facts, and varied the amount in the order.

In conclusion, the Commission rejected CN’s grounds of appeal, and dismissed the appeal. However, after considering the evidence and legislation, the Commission reduced the amount that CN had to pay for damaged or destroyed grass land resources, and increased the amount that CN had to pay for damaged or destroyed other forest resources (excluding timber). To correct a calculation error in the order, the Commission also varied the amount that CN had to pay for payroll loading costs as part of the government’s fire control costs.

2019-WFA-003(a) Dustin Lee Chambers v. Government of British Columbia

Decision Date: February 4, 2020

Panel: Darrell Le Houillier

Keywords: Administrative Tribunals Act – s. 16; Wildfire Act – s. 25; Wildfire Regulation – s. 31; wildfire; cost recovery order; fire suppression costs; consent order

Dustin Lee Chambers appealed an order issued in April 2019 by the Manager, Provincial Wildfire Coordination Centre (the “Manager”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”).

On April 18, 2016, a wildfire ignited on Mr. Chambers’ property located near Baldonnel, BC. The wildfire spread to adjacent Crown land. Firefighting crews responded from the Ministry’s Wildfire Service and local fire departments. The Wildfire Service declared the wildfire out on June 2, 2016.

The Manager determined that debris piles that Mr. Chambers lit on his property in mid-March 2016 caused ‘holdover’ fires that later emerged and caused the wildfire. The Manager ordered Mr. Chambers to pay the Ministry’s fire suppression costs totalling $64,655.98 under section 25 of the Wildfire Act and section 31 of the Wildfire Regulation.

Mr. Chambers appealed the order. He submitted that the Manager’s conclusion about the cause of the wildfire was inconsistent with information from the Ministry’s investigation, and the Manager’s decision-making process was procedurally unfair and failed to provide Mr. Chambers with a meaningful opportunity to be heard.

Before the appeal was heard by the Commission, the parties negotiated an agreement to resolve the appeal.

By consent of the parties, the Commission ordered that the Manager’s order was rescinded, and the appeal was allowed.