Decision Date: July 8, 2016
Panel: Michael Tourigny
Keywords: Wildfire Act – ss. 5(1), 26, 27, 33; Wildfire Regulation – ss. 21(1)(c), (d) and (e); fire suppression costs; cost recovery order; administrative penalty; open fire; fire break; fire suppression system; limitation period
Ralph Stevenson appealed a determination issued by the Deputy Fire Centre Manager (the “Manager”), Kamloops Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Manager determined that Mr. Stevenson had contravened section 5(1) of the Wildfire Act by lighting several category 2 open fires (i.e., less than 0.2 hectares in size) on his private land without first ensuring that the circumstances prescribed in sections 21(1) of the Wildfire Regulation were met.
The events that led to the determination are as follows. In late April and early May, 2013, Mr. Stevenson lit several open fires on his property to burn old grass and allow new growth for his cattle to feed on. On May 5, 2013, Mr. Stevenson’s neighbour reported a wildfire on the Crown land across a road from Mr. Stevenson’s property. Ministry firefighters responded to the wildfire, which burned 2.7 hectares of Crown land.
Following an investigation, the Manager found that the wildfire on Crown land was most likely caused by wind-blown embers from the open fires that Mr. Stevenson had lit prior to May 5, 2013. The Manager found that Mr. Stevenson had failed to establish a fuel break around the fires he lit, did not have an adequate fire suppression system at the burn site, did not ensure that the fires were watched and patrolled to prevent an escape of the fires, and was not equipped with at least one firefighting hand tool, contrary to sections 21(1)(c) and (d) of the Wildfire Regulation. Consequently, Mr. Stevenson had lit the open fires in contravention of section 5(1) of the Wildfire Act. The Manager levied an administrative penalty of $300 against Mr. Stevenson for the contravention, and ordered him to pay the Ministry’s fire suppression costs of $34,192.28.
Mr. Stevenson appealed the determination on numerous grounds, including that he did not contravene section 5(1) of the Wildfire Act, or alternatively, if he did, that the penalty and cost recovery order should be varied. Mr. Stevenson argued that the Manager’s determination was invalid because it was made after a statutory limitation period had expired, and there were gaps or irregularities in the evidence that undermined the validity of the determination and the fairness of the appeal process. At Mr. Stevenson’s request, the appeal was heard based on written submissions.
The Commission found that the Manager’s determination was made on November 9, 2015, which was within the three-year limitation period in section 33 of the Wildfire Act. A typographic error stating a date in 2012, rather than 2013, on a bill related to the Ministry’s fire suppression costs and in a draft report prepared by the Ministry’s investigators did not negate all of the other evidence, which clearly established that the fire and the investigation all took place in May of 2013.
The Commission also found that there were no irregularities or gaps in the Ministry’s evidence that warranted rescinding the determination, or that rendered the appeal process unfair. The Commission also found that, even if there were procedural errors in the Manager’s decision-making process, the full hearing of the matter before the Commission cured any such defects.
Regarding whether Mr. Stevenson had contravened section 5(1) of the Wildfire Act, the Commission reviewed the applicable requirements in section 21(1) of the Wildfire Regulation. Based on the evidence, the Commission found that Mr. Stevenson failed to establish a fuel break around the open fires he had lit. He had relied on a creek, a road, and snow or wet ground to provide fire breaks around the open fires, but the dry grass adjacent to the fires acted as fuel and allowed the fires to spread well beyond the burn areas. The Commission also found that he did not have an adequate fire suppression system at the burn site. Although he owned a fire extinguisher, it was not present at the burn area. Moreover, on the evening of May 4, which was a warm and windy night, he had observed some trees smouldering but he had no firefighting hand tools at the site, and he did not patrol the fires to prevent an escape. He also did not ensure that the fires were extinguished before he left the burn area. As a result, Mr. Stevenson did not meet the requirements in sections 21(1)(c), (d), and (e) of the Wildfire Regulation, contrary to section 5(1) of the Wildfire Act.
Next, the Commission considered whether the statutory defences of due diligence and mistake of fact in section 29 of the Wildfire Act applied, such that Mr. Stevenson would have a complete defence to the contravention. Based on the evidence, the Commission found that neither of those defences applied.
After reviewing the evidence regarding the cause of the wildfire on Crown land, the Commission concluded that there was no evidence that the fire had been caused by arson or a careless smoker as suggested by Mr. Stevenson. The physical evidence at the site, which the Ministry investigators had observed and recorded, indicated that the wildfire was most likely caused by wind-blown embers from the open fires on Mr. Stevenson’s land, which had landed and ignited on the Crown land across the road. The Commission also determined that the Ministry’s fire suppression efforts were necessary to control the wildfire. There was no evidence that the Ministry’s firefighting response was unwarranted or excessive as suggested by Mr. Stevenson. In the circumstances, the Commission decided to confirm the cost recovery order. After considering the factors in section 27(3) of the Wildfire Act, the Commission also confirmed the administrative penalty.
Accordingly, the appeal was dismissed.