Decision Date: May 17, 2011

Panel: James Hackett, Blair Lockhart, Reid White

Keywords:  Wildfire Regulation – ss. 22(3), 22(4); fuel break; fire escape; burn area; out of control; notice of investigation; due diligence

Louisiana-Pacific Canada Ltd. (“LP”) appealed a contravention order and administrative penalty/cost recovery order issued by the Fire Centre Manager (the “Manager”), Southeast Fire Centre, Ministry of Forests and Range.  The Manager determined that LP contravened sections 22(3) and 22(4)(a), (b) and (c) of the Wildfire Regulation (the “Regulation”) by failing to ensure that its category 3 open fires did not escape, and by failing to take the required actions when the fires spread beyond the burn area or otherwise became out of control.  The Manager levied penalties totalling $4,230 for the contraventions.

The alleged contraventions occurred when LP staff ignited some logging debris piles in a cutblock in late October 2007.  When the piles were ignited, LP staff considered the snow present on the cutblock to be a fuel break that would prevent the fires from spreading.  One day after the fires were ignited, LP staff checked the cutblock and found that the fires had spread beyond the piles and into the fuel break.  However, LP staff decided that an adequate fuel break of snow was still in place and the fires would not spread any further.  A few days later, Ministry staff visited the cutblock and found that the fires had burned beyond the piles and had burned approximately 3 hectares of seedlings in the cutblock.  Ministry staff observed smoke coming from the piles and from other areas in the cutblock where the fires had spread.  The next day, Ministry staff asked LP staff several questions about the fires, which LP staff answered.  All of the fires self-extinguished before November 2007.

In February 2008, the Manager advised LP that the Ministry was investigating whether LP had contravened the Regulation.  The Manager issued the orders in October 2009.

LP appealed on the grounds that the fires did not “escape” because they did not go beyond the cutblock boundaries and did not escape the “burn area”, and they were not “out of control” within the meaning of the Regulation.  LP also argued that the determination process was unfair because the Ministry did not notify LP of the investigation until well after the relevant events had occurred.  Further, LP submitted that if the contraventions occurred, the defence of due diligence applied.

The Commission considered the following issues: (1) whether the Ministry’s failure to notify LP until February 2008 that it was investigating the fires tainted or nullified the determination process such that the orders should be rescinded; (2) whether LP contravened sections 22(3) or 22(4) of the Regulation; (3) if LP contravened the Regulation, whether any defences apply; and (4) if no defences apply, whether the penalties are appropriate in the circumstances.

The Commission unanimously found that the Ministry’s failure to formally notify LP of the investigation until February 2008 did not taint or nullify the determination process such that the orders should be rescinded.  The Commission held that, although it would have been helpful to LP if the Ministry had notified it of the investigation as soon as the Ministry suspected a possible contravention, the most important and relevant evidence was in relation to the events that occurred during the first two days after the fires were lit.  When the Ministry initially contacted LP about the fires, the fires were 4 days old, the spreading had already occurred, and the risk of further spreading was low.  Given the evidentiary basis for the contraventions, the timing of the Ministry’s notification was not fatal to the enforcement proceedings and the orders.

With regard to the remaining issues, the Commission was divided on its findings.

On the issue of whether LP contravened sections 22(3) or 22(4) of the Regulation, the majority of the Commission found that the fires did not “escape” within the meaning of section 22(3).  Although the fires did spread beyond the burn area into the cutblock, they did not spread into the surrounding timber or grass land, and there was no damage to the environment, public property, private property or other values protected by the legislation.  The majority also held that the fires were not “out of control” within the meaning of section 22(4).  In the context of the Regulation, “out of control” means beyond the capacity of the people or equipment required to be present, or the site conditions, to prevent further spread of the fire into forest land or other values that are protected by the legislation.  The requirements in section 22(4) to take fire control action and report a fire are triggered when a fire is beyond the burn area and is out of control, and in this case those requirements were not triggered because the fire was not out of control.  Since the fire did not “escape” and was not “out of control”, there were no contraventions of sections 22(3) or 22(4) of the Regulation.

Accordingly, the majority of the Commission concluded that the contraventions and penalties should be rescinded.  Therefore, the majority did not need to consider the remaining issues.

The minority of the Commission would have confirmed the orders and the penalties.  The minority found that an “escape” occurs when a fire is no longer contained in the burn area that is bounded by a fuel break.  In this case, the fires spread beyond the fuel break, and although the consequences were mainly detrimental to LP’s interests, in that it had to replant the burned seedlings, there was a contravention of section 22(3) and enforcement action was appropriate.  The minority also held that section 22(4) was contravened, because spreading beyond the burn area constitutes being “out of control”, and LP did not take action to contain, extinguish or limit the spread of the fire, or report it as soon as practicable.  The minority also held that LP failed to establish the defence of due diligence, and that the penalties were appropriate in the circumstances.

In accordance with the majority’s decision, the appeal was allowed.