Decision Date: March 8, 2013

Panel: Alan Andison

Keywords: Wildfire Act – ss. 26, 29(a); Wildfire Regulation – s. 10(a); utility transmission line; fire control costs; Crown timber damaged or destroyed by fire; consent order

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 holds a licence of occupation on Crown land to “construct, maintain and use” a power line that runs along a Forest Service Road. The power line supplies electricity to a Telus communications tower. In July 2006, a dead tree or “snag” fell on the power line, causing a power failure. The snag also caused insulators to break, resulting in a conductor falling to the ground and igniting a forest 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 ordered Telus to pay for the Ministry’s fire control costs, and the value of the Crown timber that was damaged or destroyed by the fire. Those costs exceeded $2 million.

Telus appealed the Forest Official’s determination to the Commission. At the parties’ request, the Commission first heard the matter of whether Telus was liable under the Wildfire Act for the Ministry’s fire control costs and the Crown timber losses arising from the fire. Any issues regarding the quantum of the fire control costs and the value of the Crown timber would be decided later in a separate hearing, if necessary.

In Telus Mobility Inc. v. Government of British Columbia (Decision No. 2009-WFA-002(a), issued October 4, 2010), the Commission confirmed the Forest Official’s finding that Telus contravened section 10(a) of the Regulation. In particular, the Commission held that section 10(a) of the Regulation deals with the risk of fire ignition on, or adjacent to, “the site”. Section 10(a) specifically refers to “the site” and not just the utility transmission equipment. The Commission found that, for ignition to occur, both the equipment and the 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, and there was no evidence that Telus had a program of preventive vegetation management for the power line. On two additional issues, the Commission found that Telus failed to exercise due diligence in relation to the contravention, and the design and construction of the power line was not defective.

Telus appealed the Commission’s determination regarding the proper interpretation of section 10(a) of the Regulation to the BC Supreme Court.

In Telus Mobility Inc. v. Minister of Forests and Range and Forest Appeals Commission, 2012 BCSC 459, the Court first considered the standard of review that applied to the Commission’s decision. The Court found that the standard to be applied when the Commission is interpreting its own statute or a related statute is reasonableness, which means that the Court must defer to the Commission’s findings. In the present case, the reasonableness standard applied because the Commission is a specialized tribunal and was interpreting statutes that are closely connected to the Commission’s function, and with which it has particular familiarity.

Next, the Court considered whether the Commission erred in interpreting section 10(a) of the Regulation. The Court concluded that the Commission’s interpretation fell within a range of possible, acceptable outcomes, and the Commission justified its decision in a transparent and intelligible manner. The Court concluded that the Commission’s interpretation of section 10(a) was reasonable, and the Court dismissed the appeal.

Following the Court’s decision, the parties negotiated an agreement with respect to the order that Telus pay $2,138,262.13 for fire control costs and the loss of Crown timber. With the parties’ consent, the Commission ordered that the Forest Official’s determination was upheld, and the appeal was dismissed.