Decision Date: April 1, 2022

Panel: Jeffrey Hand, Daniela Chimisso dos Santos, Howard M. Saunders

Keywords: Wildfire Act – ss. 5(1), 25(); Wildfire Regulation – ss. 22(2)(b), 22(3), 29; cost recovery order; fire control costs; damage to Crown timber; wildfire cause; administrative penalty; industrial activity

North Enderby Timber Ltd. (“North Enderby”) and Canadian Cedar Oil Technologies Ltd. (“Canadian Cedar”) (collectively, the “Appellants”) appealed two separate but related orders (the “Orders”) issued by the Manager of the Prince George Fire Centre (the “Manager”) in the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”).

The Appellants are related companies. Canadian Cedar held rights, under a licence issued under the Forest Act, to harvest timber on a cutblock. Canadian Cedar assigned those rights to North Enderby, which acted as Canadian Cedar’s agent for the timber harvesting. After harvesting was complete, North Enderby hired a consultant to pile and burn logging debris. In November 2016, the consultant carried out the work, and then prepared a report which noted the potential for holdover fires in some piles.

In late April 2017, Ministry employees observed smoke rising from a debris pile in the cutblock. They found a smouldering fire under a stump in the pile. They performed some fire suppression but did not believe the fire was extinguished. The Ministry told North Enderby about the hotspot on the cutblock and said action was required to extinguish it. Two days later, during heavy rain, a North Enderby employee attended the cutblock, but he observed no smoke or heat coming from debris piles. He concluded that no more follow-up was required.

In mid-May 2017, the Ministry hired an excavator to turn over stumps on the cutblock to assist silviculture. The machine operator observed no indication of holdover fires. Conditions were wet and muddy at that time.

In early June 2017, North Enderby’s consultant examined some piles on the cutblock and observed no heat or smoke.

On July 16, 2017, a wildfire on the cutblock was reported. The wildfire spread and burned approximately 9.7 hectares of Crown timber outside the cutblock. Ministry investigators concluded that the wildfire was caused by a holdover fire in a debris pile ignited by North Enderby’s consultant in November 2016.

In the Order issued to North Enderby, the Manager found that it had contravened section 5(1) of the Wildfire Act by igniting an open fire while engaged in activity that was not an industrial activity and failing to adequately watch and patrol the debris piles when there was a risk of the fire escaping. The Manager also found that North Enderby contravened sections 22(2)(b) and (3) of the Wildfire Regulation (the “Regulation”), respectively, because at least one debris pile fire continued to burn after the burn authorization expired, and fire escaped and caused the wildfire. The Manager levied a $15,000 penalty against North Enderby and ordered it to pay: $156,602.40 for the government’s fire control costs; $109,964.40 for the value of Crown timber damaged by the wildfire; and, $936.60 for the government’s silviculture costs.

In the Order issued to Canadian Cedar, the Manager found that Canadian Cedar had also contravened section 5(1) of the Act and sections 22(2) and (3) of the Regulation. He levied a $2,500 penalty against Canadian Cedar.

Each Appellant appealed the Order that was issued to it. The Appellants asked the Commission to rescind the findings of contraventions and set aside the Orders. Alternatively, they asked the Commission to reduce the penalties and the amount to be paid for Crown timber damaged in the wildfire.

The Commission confirmed that that the wildfire was caused by a holdover fire that escaped from a debris pile that North Enderby’s contractor lit in November 2016, and North Enderby failed to prevent the escape as required by section 22(1)(f)(iii) of the Regulation. However, the Commission found that this was a contravention of section 6(1) rather than section 5(1) of the Act, because the disposal of logging debris, including burning that debris, is an industrial activity. Section 5(1) applies to non-industrial activities whereas section 6(1) applies to industrial activities, but they are otherwise identical and the prescribed circumstances in section 22 of the Regulation apply to both. The Commission also confirmed that North Enderby contravened sections 22(2)(b) and (3) of the Regulation. Given that North Enderby was Canadian Cedar’s agent and contractor for the timber harvesting, Canadian Cedar likewise committed the contraventions.

The Commission found that the defence of due diligence did not apply. North Enderby was not duly diligent because it had no systems or policies regarding debris pile burning or holdover fires to govern its staff and consultant, no written contract with its consultant to govern each party’s roles and responsibilities, and it did not supervise the consultant’s work.

Next, the Commission considered whether section 29 of the Regulation applied. Section 29 provides that the government may not order the recovery of its fire control costs against a person who did not wilfully cause or contribute to the fire, and the fire that gives rise to the government’s costs results from timber harvesting, silviculture treatments, road construction, road maintenance or road deactivation by a person who holds an agreement or licence under the Forest Act. The Commission found that the Appellants met the requirements of section 29, and they could not be ordered to pay the government’s fire control costs.

The Commission confirmed the volume of mature Crown timber damaged in the Wildfire, and that North Enderby must pay the value of that timber. However, the parties agreed that the value of the timber was $66,871.79 rather than $109,964.40.

Finally, after considering the factors set out in section 27(3) of the Act, the Commission found that North Enderby should pay a penalty of $5,000 rather than $15,000. The Commission confirmed the $2,500 penalty against Canadian Cedar.

Accordingly, the appeals were allowed, in part.