Decision Date: April 22, 2013

Panel: Alan Andison

Keywords: Forest Practices Code of British Columbia Act – ss. 133, 135; Wildfire Act – ss. 25(2); fire suppression costs; cost recovery order; preliminary issue; document disclosure

Robert Unger appealed a review decision issued by the Fire Centre Manager (the “Manager”), Cariboo Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Manager confirmed his previous determination that Mr. Unger had contravened section 5(1) of the Wildfire Act and section 20(2) of the Wildfire Regulation by lighting a camp fire on his privately owned land when it was unsafe to do so, failing to establish a fuel break around the fire, and allowing the fire to escape. The Ministry responded to the resulting wildfire, which was not within the jurisdiction of a fire department. The Manager also confirmed his previous cost recovery order issued under section 25(2) of the Wildfire Act, which requires Mr. Unger to pay $861,356.09 for the Ministry’s fire suppression costs.

Mr. Unger appealed the review decision on numerous grounds, including that the Manager erred in interpreting and applying section 25 of the Wildfire Act, and erred in interpreting and applying a Ministry policy with respect to levying cost recovery orders against private land owners. He also submitted that the Manager fettered his discretion and breached the principles of procedural fairness in making the cost recovery order.

Before the appeal was heard, Mr. Unger requested that the Commission order the Government to produce certain documents. Specifically, he requested internal government documents regarding the creation and interpretation of certain sections of the Wildfire Act, the Wildfire Regulation, and any internal memoranda or emails regarding the establishment of certain aspects of the Ministry’s policy on levying cost recovery orders against private land owners. He submitted that the documents were relevant to the issues in the appeal, and would assist the Commission in deciding the appeal.

The Commission denied the application with respect to any internal government documents on the creation of the Wildfire Act and the Wildfire Regulation. The Commission found that, according to the rules of statutory interpretation, the provisions of the Wildfire Act and the Wildfire Regulation must be interpreted based on the plain and ordinary of the words, in their legislative context. Secondary sources of information regarding the Legislature’s intention may act as aids to interpretation only if the statutory language is vague. Further, the requested documents would likely be accorded little or no weight by the Commission, because the Commission has specialized expertise in interpreting the statutes under which it hears appeals, and it has previously determined that the opinions of Ministry officials regarding the intent of legislation carry no weight.

The Commission also denied the application with respect to any internal documents regarding the establishment of certain aspects of the Ministry’s policy on levying cost recovery orders against private land owners. The Commission found that the request was overly broad, and in any case, the Manager’s review decision indicates that he did not rely on that particular aspect of the Ministry’s policy in reaching his decision. Moreover, the Government had already disclosed to Mr. Unger an internal policy document that was referred to in the Manager’s review decision.

Finally, the Commission found that the request for internal government documents regarding the interpretation of certain sections of the Wildfire Act and Wildfire Regulation that were either available to, or were considered by, the Manager in making his original determination/cost recovery order and subsequent review decision should be made available to Mr. Unger. Although the Commission may give limited weight to such documents, the Commission found that they could be useful and relevant in deciding the appeal, particularly regarding the issue of whether the Manager fettered his discretion. In addition, the early disclosure of these documents would assist Mr. Unger in preparing his case.

Accordingly, the application for document disclosure was granted, in part.