Decision Date: January 20, 2010

Panel: Alan Andison

Keywords:  Wildfire Regulation – s. 6(3)(b)(ii); consent order; liability; forest fire

Gorman Bros. Lumber Ltd. (“Gorman”) appealed a determination by the Fire Centre Manager, Kamloops Fire Centre, Ministry of Forests and Range, that Gorman had contravened section 6(3)(b)(ii) of the Wildfire Regulation by carrying out a high risk activity during a time when there was a risk of a forest fire starting, without having an adequate fire suppression system in place.

The fire started in a cut block where Gorman’s contractor, Allison and Allison Logging (“Allison”) was operating a feller-buncher.  The conditions at the site were dry and hot.  The felling head of the feller-buncher contacted a piece of metal track guard which had broken loose from the same machine, producing hot metal sparks.  The machine operator noticed the fire and attempted to extinguish it using hand tools and extinguishers, but he was unsuccessful.  He reported the fire to Gorman and the Ministry.  A large mobile water tank was located in another cut block, approximately 1400 metres from where the fire started.  The Ministry dispatched initial attack crews, aircraft and other resources to the fire.  Gorman assisted the fire suppression efforts.  The fire eventually burned approximately 1811 hectares.  The Ministry estimated that the value of Crown forest resources damaged by the fire was $6,705,915.  The Province spent $1,768,036 in fire suppression costs.

The Fire Centre Manager found that Gorman was liable for the contravention because either Gorman was the one carrying out the high risk activity contrary to the Wildfire Regulation, or alternatively, Gorman was vicariously liable for Allison’s actions.  The Fire Centre Manager found that Gorman had not established the defence of due diligence, and he ordered Gorman to pay an administrative penalty of $10,000.  The determination did not address the recovery of fire suppression costs or damages to the Crown.

Gorman appealed the determination on several grounds, including that it was not liable for the contravention, and that the Fire Centre Manager had erred by ordering it to pay a penalty without providing an opportunity to be heard on that issue.

In a separate determination, the Fire Centre Manager also found that Allison contravened the Wildfire Regulation while working under Gorman’s direction and control, and he ordered Allison to pay a penalty of $10,000.  Allison appealed that determination to the Commission (Appeal No 2008-WFA-004).  The appeals by Gorman and Allison were scheduled to be heard together by the Commission.

Before the appeals were heard, the parties requested that the appeals be held in abeyance while they attempted to negotiate a settlement.  After several months, Gorman, the Ministry and the Forest Practices Board reached an agreement to settle Gorman’s appeal.  By consent of those parties, the Commission ordered that the determination against Gorman was rescinded.

Accordingly, the appeal was allowed.