Decision Date: March 29, 2012

Court: BCSC, Russell

Cite: 2012 BCSC 459

Telus Mobility Inc. (“Telus”) appealed a decision of the Forest Appeals Commission (the “Commission”) to the British Columbia Supreme Court. The decision involved whether Telus was liable under the Wildfire Act for fire control costs incurred by the Ministry of Forests and Range (the “Ministry”), and Crown timber losses, arising from a forest fire.

Telus holds a licence of occupation on Crown land to “construct, maintain and use” a power line that runs along a Forest Service Road. The power line supplies electricity to a Telus communications tower. In July 2006, a dead tree or “snag” fell on the power line, causing a power failure. Telus’ contractor was alerted to the power failure and went to the site. As he drove to the site, he was stopped by Ministry officers because a forest fire had occurred at kilometre 4.4 of the power line. The fire was caused by the snag falling on the power line. The snag caused insulators to break, resulting in a conductor falling to the ground and igniting the fire, which grew to over 380 hectares in size.

A Forest Official with the Ministry determined that Telus had failed to maintain its utility line equipment as required under section 10(a) of the Wildfire Regulation (the “Regulation”). He ordered Telus to pay for the Ministry’s fire control costs, and the value of the Crown timber that was damaged or destroyed by the fire. Those costs totalled over $2 million. Telus appealed the Forest Official’s determination to the Commission.

At the parties’ request, the Commission heard only the matter of liability. Specifically, the Commission considered: (1) whether section 10(a) of the Regulation imposes on Telus the obligation to engage in site maintenance, such as the removal of snags from or near the power line right-of-way, so as to prevent their interference with the power line, thereby reducing the risk of wild fires; (2) whether the statutory defence of due diligence applied to Telus in the circumstances; and (3) whether the design and construction of the power line was defective. Telus argued that it did not contravene section 10(a) of the Regulation, because that section does not impose a duty with respect to vegetation maintenance; rather, it imposes a maintenance obligation with respect to “equipment, apparatus and material” only. Alternatively, Telus submitted that the statutory defence of due diligence applied in the circumstances.

In Telus Mobility Inc. v. Government of British Columbia (Decision No. 2009-WFA-002(a), issued October 4, 2010), the Commission confirmed the Forest Official’s finding that Telus contravened section 10(a) of the Regulation. In particular, the Commission held that section 10(a) of the Regulation deals with the risk of fire ignition on, or adjacent to, “the site”. Section 10(a) specifically refers to “the site” and not just the utility transmission equipment. The Commission found that, for ignition to occur, both the equipment and site combine to produce the appropriate conditions. The evidence established that trees or snags falling on overhead power lines are a known source of potential line failure and fire, and that fire prevention measures in utility transmission operations typically include a vegetation management program involving regular right-of-way inspections, brush removal, and identification and removal of snags that may fall onto power lines. The obligations on a transmission utility operator under section 10(a) of the Regulation include both preventive and reactive maintenance, and there was no evidence that Telus had a program of preventive vegetation management for the power line. On the other two issues, the Commission found that Telus failed to exercise due diligence, and the design and construction of the power line was not defective.

Telus appealed the Commission’s determination on the first issue to the Court.

The Court first considered the standard of review that should apply to the Commission’s decision. In determining the appropriate standard, the Court applied the test set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9. The Court found that the standard to be applied to decisions of the Commission when it is interpreting its own statute, or a related statute, is reasonableness, which means that the Court must defer to the Commission’s findings. The Court held that this standard applies even when the Commission is deciding a question of law, with the exception of questions of jurisdiction. In the present case, the reasonableness standard applies because the Commission is a specialized tribunal and was interpreting statutes that are closely connected to the Commission’s function, and with which it has particular familiarity.

Next, the Court considered whether the Commission erred in interpreting section 10(a) of the Regulation to include an obligation to maintain the site’s vegetation. The Court concluded that, when the Wildfire Act and the Regulation are read in their entirety, in their ordinary and grammatical sense and harmoniously with the scheme and object of the legislation, the Commission’s interpretation fell within a range of possible, acceptable outcomes, and the Commission justified its decision in a transparent and intelligible manner. The Court concluded that the Commission’s interpretation of section 10(a) to include an obligation to maintain the site’s vegetation was reasonable.

Finally, the Court considered whether the Commission erred in interpreting section 10(a) of the Regulation to include a vegetation maintenance obligation that Telus could not legally undertake. Telus argued that this was so, because it was required under the Forest and Range Practices Act and its licence of occupation to obtain permission before felling timber on Crown land. The Court held that the requirement to obtain permission before removing timber in a utility right-of-way does not result in an interpretation of the Regulation that would make compliance impossible. Compliance is possible, with permission. In the event of an emergency, Telus could remove a hazard without permission, and discuss the matter with the Crown afterwards. The defence of necessity would be open to Telus, should an issue arise after the fact. In cases where Telus is denied permission, it would have the defence of due diligence. The Court concluded, therefore, that the Commission’s interpretation of section 10(a) the Regulation in that regard was also reasonable.

Accordingly, the Court dismissed the appeal.