Decision Date: February 22, 2005

Panel: Katherine Lewis, Cindy Derkaz, Gary Robinson

Keywords: Forest Fire Prevention and Suppression Regulation – ss. (4)(1)(a) and 13(2); Forest Practices Code of British Columbia Act – ss. 95(1), 117 and 162; Administrative Remedies Regulation – s. 4(1); limitation period; fire suppression; fire watch; vicarious liability; contractor; solicitor-client privilege.

Louisiana-Pacific Canada Ltd. (“Louisiana-Pacific”) appealed a determination where the Fire Centre Manager found that it had contravened sections 4(1)(a) and 13(2) of the Forest Fire Prevention and Suppression Regulation (the “FFPSR”).  The Fire Centre Manager also denied compensation for fire suppression costs under section 95(1) of the Forest Practices Code of British Columbia Act (the “Code”), assessed costs of $149,354 against Louisiana-Pacific under section 162 of the Code for fire suppression activities undertaken by the Crown, and levied a penalty of $345 against Louisiana-Pacific for each contravention of the FFPSR.  Louisiana-Pacific sought an order rescinding the findings in the determination and the assessed penalties.

The Government acknowledged that the Fire Centre Manager exceeded his jurisdiction in making a finding of liability under section 162 of the Code.  The Government also conceded that the Fire Centre Manager, in administering the two $345 penalties, was barred from doing so due to the expiry of the statutory limitation period in section 4(1) of the Administrative Remedies Regulation.  Accordingly, the Commission rescinded the Fire Centre Manager’s determination as it pertained to his assessment of fire suppression costs against Louisiana-Pacific and the two administrative penalties issued.  However, the Commission found that the Fire Centre Manager had the authority to determine whether there were contraventions of the FFPSR, independently of any authority to levy a penalty.

The Commission agreed with the Fire Centre Manager that Louisiana-Pacific was vicariously liable, under section 117(2) of the Code for the acts of the Third Parties, as they were contractors of Louisiana-Pacific for the purposes of that Act.  The Commission found that the requirements of a fire watch under section 4(1)(a) of the FFPSR were not fulfilled, and the resulting contravention of this section contributed to the spread of the fire.  The Commission also found that section 13(2) of the FFPSR was contravened.  The evidence indicated that one muffler, which had been purposely modified, was from a chainsaw that had been operated on the cut block where the fire had started.  The ability of the muffler to reduce hot carbon emissions was lessened, and was found to be the most probable cause of the fire.  Accordingly, the Commission confirmed the Fire Centre Manager’s determination regarding whether section 4(1)(a) and 13(2) were contravened, and his denial of fire suppression costs under section 95(5) of the Code.  The appeal was allowed, in part.