Decision Date: October 4, 2010

Panel: David H. Searle, CM, QC, Les Gyug, Blair Lockhart

Keywords:  Wildfire Act – ss. 26, 29(a); Wildfire Regulation – s. 10(a); forest fire; utility transmission operation; power line; vegetation management; liability; due diligence;

Telus Mobility Inc. (“Telus”) appealed a contravention order issued by the Fire Centre Manager (the “Forest Official”), Kamloops Fire Centre, Ministry of Forests and Range (the “Ministry”).  The events that led to the appeal arose from a forest fire that occurred in July 2006.

Telus has a licence to maintain a power line along the Chuwhels Mountain Forest Service Road (the “Power Line”).  The Power Line supplies electricity to a mobile telephone mast operated by Telus.  In the early afternoon of July 3, 2006, a dead tree or “snag” blew down on the Power Line, causing the power to go out.  A contractor of Telus responsible for maintaining the Power Line was alerted to the power failure and went to the site.  He found a snag on the Power Line at approximately kilometre 4.1, and removed it.  He replaced a fuse, and power was restored.  There is no suggestion that this snag caused a fire.  Later that afternoon, he was again notified of a power failure.  However, as he drove to the site this time, he was stopped by Ministry officers because of the fire, which occurred at approximately kilometre 4.4 on the Power Line.  The fire was caused by a snag (not the one that was removed) falling on the Power Line.  The Power Line fell to the ground and ignited the fire, which grew to over 380 hectares in size.

The Forest Official determined that Telus had failed to maintain its utility line equipment as required under section 10(a) of the Wildfire Regulation (the “Regulation”).  He also ordered Telus to pay the Government’s costs of fire control and for damaged or destroyed Crown timber resulting from the fire.  Those costs totalled over $2 million.

At the parties’ request, the Commission heard only the issue of liability.  Any issues regarding the quantum of costs would be decided later in a separate hearing, if necessary.

Telus requested that the Commission set aside the contravention order on the basis that Telus did not contravene section 10(a) of the Regulation, or alternatively, that Telus exercised due diligence.  There was no dispute that the Power Line’s design and construction was in accordance with applicable standards.  Nor was there any dispute that the fire was caused when a snag fell on the Power Line, causing two insulators to break, so that the line fell to the ground.  Telus argued that section 10(a) of the Regulation does not impose a duty with respect to vegetation maintenance; rather, it imposes a maintenance obligation with respect to “equipment, apparatus and material” only.

The Commission first considered whether Telus’ failure to remove the snag before it fell on the Power Line amounted to a contravention of section 10(a) of the Wildfire Regulation.  The Commission held that section 10(a) of the Regulation deals with the risk of ignition on, or adjacent to, the site.  The wording of section 10(a) specifically refers to “the site” and not just the equipment.  The Commission found that, for ignition to occur, both the equipment and site combine to produce the appropriate conditions.  The evidence established that trees or snags falling on overhead power lines are a known source of potential line failure and fire, and that fire prevention measures in utility transmission operations typically include a vegetation management program involving regular right-of-way inspections, brush removal, and identification and removal of snags that may fall onto power lines.  The obligations on a transmission utility operator under section 10(a) of the Regulation include both preventive and reactive maintenance.  There was no evidence that Telus had a program of preventive vegetation management for the Power Line.  For those reasons, the Commission concluded that Telus contravened section 10(a) of the Regulation.

Next, the Commission considered whether Telus exercised due diligence in discharging its obligations under section 10(a) of the Regulation.  The Ministry’s evidence was that the snag that caused the Fire had been dead for a number of years, and was both visibly dead and a predictable hazard.  The Commission found that this evidence showed a lack of preventive maintenance by Telus to maintain equipment in a manner that reduces the likelihood of producing an ignition source.  The Commission held, therefore, that Telus had failed to establish due diligence as a defence to the contravention.

Consequently, the Commission confirmed the Forest Official’s finding that Telus contravened section 10(a) of the Regulation and that it failed to establish due diligence as a defence to the contravention.

The appeal was dismissed on the issue of liability.