Decision Date: October 22, 2012

Court: BCSC, Justice Harvey

Cite: 2012 BCSC 1546

Louisiana-Pacific Canada Ltd. 1(“LP”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the British Columbia Supreme Court. The matter arose from the following circumstances.

In late October 2007, LP staff ignited three piles of logging debris in a cutblock. At that time, LP staff thought that snow on the cutblock would act as a fuel break to prevent the fires from spreading. One day after the fires were ignited, LP staff found that the fires had spread 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. LP staff did not take fire control action or report the spread of the fires to the Ministry of Forests and Range (the “Ministry”). A few days later, Ministry staff found that the fires had burned approximately three hectares of seedlings in the cutblock. The Ministry staff observed smoke coming from the piles and other areas in the cutblock. All of the fires self-extinguished before November 2007.

In October 2009, the Manager of the Ministry’s Southeast Fire Centre (the “Manager”) determined that LP had contravened sections 22(3) and 22(4)(a), (b) and (c) of the Wildfire Regulation (the “Regulation”) by failing to ensure that its fires did not escape, and by failing to take fire control action or report the fires when the fires spread beyond the burn area or otherwise became out of control. The Manager levied penalties totalling $4,230 for the contraventions.

LP appealed to the Commission.

In Louisiana-Pacific Canada Ltd. v. Government of British Columbia (Decision No. 2009-WFA-004(b), issued May 16, 2011), the main issue was whether LP had contravened sections 22(3) or 22(4) of the Regulation. On that issue, the Commission’s three-person panel split 2-1 in finding that LP had not contravened the Regulation.

Specifically, the majority of the Commission found that the fires did not “escape” within the meaning of section 22(3) of the Regulation. The majority found that “escape” in that section means when a fire burns beyond the cutblock, as opposed to when a fire burns beyond the intended burn area. Although the fires spread beyond the burn area, they did not spread beyond the cutblock, and there was no damage to the environment, public property, private property or other values protected by the legislation. Since the fire did not “escape”, there was no contravention of section 22(3).

In addition, the majority held that section 22(4) of the Regulation was unclear. Where section 22(4) states “spreads beyond the burn area or is otherwise out of control”, the majority found that the word “or” was intended to mean “and”. Therefore, 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. The majority concluded that, in this case, although the fire spread beyond the burn area, the fire was never “out of control”, because it was never beyond the capacity of the people or equipment required to be present, or the site conditions, to prevent further spread of the fire to forest land or other values that the legislation protects. Since the fire was not “out of control”, there was no contravention of section 22(4).

Accordingly, the majority of the Commission concluded that the contraventions and penalties against LP should be rescinded.

The Province appealed the Commission’s decision to the BC Supreme Court. The Province submitted that the majority of the Commission erred in law: (1) in its interpretation of the word “escape” in section 22(3) of the Regulation; and (2) when it replaced the word “or” in section 22(4) with the word “and”. The parties agreed that the appropriate standard for the Court to apply in reviewing the Commission’s decision was that of “reasonableness”, which means that the Court recognized the Commission’s specialized expertise and would give some deference to the Commission’s reasons for its decision.

The Supreme Court concluded that the majority’s interpretation of the word “escape” in section 22(3) was reasonable, because it was in accordance with the principles of statutory interpretation and was within the range of possible acceptable outcomes. The Supreme Court also held that the majority’s interpretation of section 22(4) was reasonable and accords with the legislative intent underlying the Regulation.

Accordingly, the appeal was dismissed and the Commission’s decision was upheld.