Decision Date: June 5, 2006

Panel: R.A. Gorley

Keywords:  Forest Practices Code of British Columbia Act ss. 76(1), 88(1) and 88(2); Forest Fire Prevention and Suppression Regulation; fire escape; fuel break; reporting a forest fire; due diligence; mistake of fact

Specialty Logging (Cariboo) Ltd. and Terry Givens (the “Appellants”) appealed a determination by a Fire Centre Manager (the “Manager”), that the Appellants were responsible for twelve contraventions of sections 76(1) and 88(2) of the Forest Practices Code of British Columbia Act (the “Code”).  The contraventions at issue included failures to establish fuel breaks, failures to report a forest fire, the failure to extinguish a fire, and burning without a valid burning reference number.  The contraventions arose out of the burning of logging slash on seven cutblocks in several Timber Sale Licenses (“TSLs”) in the Quesnel area by the Appellants in March and April 2004.  The Manager levied separate penalties for each of the contraventions, for a total of $5,250 in penalties.

The Appellants did not challenge the Manager’s factual findings. Rather, the Appellants submitted that the Manager improperly interpreted and applied the relevant legislation.  Specifically, the Appellants argued that there is no obligation to report the escape of a fire when it has been extinguished, there is no timeline for reporting an escape, and that the Manager misinterpreted the Forest Fire Prevention and Suppression Regulation (the “Regulation”) in determining that the Appellants had failed to establish fuel breaks.  The Appellants submitted that the Manager had erred in law in failing to properly consider the defences of due diligence and mistake of fact, and to properly consider the penalty criteria set out in the Forest and Range Practices Act.  The Appellants asked the Commission to rescind the determination, dismiss the penalties, and order that they receive costs.

The Government concede that two of the contraventions, and the associated penalties, should be rescinded.  Accordingly, the Commission ordered that they be rescinded.

The Commission found that when a slash pile fire escapes from the fuel break constructed to contain it, it has left the area “intended for burning” as prescribed by section 88(1) of the Code.  This situation triggers an obligation on the person who started the fire to report it, even if the escape has been extinguished.  The Commission further found that the Appellants had an obligation to report any escaped fire within a reasonable amount of time and that the Appellants failed to do so.  The discovery of an escaped fire by a designated forest officer does not fulfill a person’s obligation to report a fire pursuant to section 88(2) of the Code.  The Commission upheld the Manger’s findings in relation to the Appellant’s contraventions of section 88(2).

The Commission further found that it is the intent of the Regulation that a fuel break be established prior to ignition and that it remain an effective buffer to escape while the fire is burning.  The Commission found that the Appellants failed to establish a fuel break in relation to two cutblocks and upheld the contraventions of section 76(1) associated with those cutblocks.  The Commission found that there was insufficient evidence in relation to a third cutblock and rescinded the associated contravention.

In relation to the defences of due diligence and mistake of fact, no specific arguments on the applicability of the defences were advanced by the Appellants before the Commission.  Therefore, the Commission found that the Appellants did not establish that those defences applied in the circumstances of this case.

In relation to the assessment of penalties, the Commission found that the penalties imposed by the Manager were within the lower end of the prescribed range and none of the evidence presented showed that the Manager’s decision regarding the penalties was unreasonable.  The Commission found that the penalties should be upheld, with the exception of the penalties associated with the three contraventions that were rescinded. Accordingly, the total amount of the penalties was reduced by $1,500.

The appeal was allowed, in part.

The application for costs was denied.