Decision Date: February 28, 2022

Panel: David Bird

Keywords: Wildfire Act – s. 25(2); Administrative Tribunals Act – s. 33; cost recovery order; fire control costs; damage to Crown timber; wildfire cause; intervener application

Canadian National Railway Company (“CN”) appealed an order requiring it to pay for the government’s fire control costs and damage to Crown timber associated with four wildfires. The order was issued by a Fire Centre Manager (the “Manager”) employed within the Ministry of Forests, Lands, Natural Resource Operations and Rural Development.

CN appealed the part of the order that related to one of the four wildfires (the “Wildfire”). In the order, the Manager found that the Wildfire ignited at or near CN’s railway track at marker 129.4 KM on May 23, 2018, and was caused by CN’s employees or contractors conducting maintenance on the track earlier that day. The Manager ordered CN to pay the government’s fire control costs of $2,699,064.06 and $5,524.58 for damage to Crown timber caused by the Wildfire.

In its notice of appeal, CN alleged that the railway maintenance operations that allegedly caused the Wildfire were performed by its contractor, John Hunter Co. Ltd. (“Hunter”). CN argued that it did not cause or contribute to the Wildfire, and it disputed the amount that it was ordered to pay.

After CN appealed the order, Hunter applied to the Commission to participate in the appeal as an intervener. Under section 33 of the Administrative Tribunals Act (the “ATA”), the Commission may allow a person to intervene in an appeal if the Commission is satisfied that the person meets certain requirements. The Commission may also limit an intervener’s participation. CN opposed Hunter’s application.

The Commission found that Hunter should be allowed to intervene in the appeal, because Hunter could bring a valuable perspective that would assist the Commission in deciding the appeal, and the potential benefits of its intervention outweighed any prejudice to the other parties. Specifically, Hunter had expertise or knowledge about what may have caused the Wildfire, including information about the conditions where it was working on the day the Wildfire ignited, the nature and location of its activities, and potential causes of the Wildfire. Hunter’s perspective on the cause of the Wildfire would likely be different from CN’s. Although Hunter’s participation may add to the duration and cost of the appeal process, the Commission found that it could mitigate those concerns by limiting Hunter’s participation to addressing the issue of the cause of the Wildfire.

Accordingly, the Commission granted Hunter’s application to intervene in the appeal.