Decision Date: June 30, 2010

Panel: Alan Andison

Keywords:  Wildfire Regulation – ss. 6(3)(b)(ii), 6(4)(a), 6(4)(c); consent order; vicarious liability; forest fire

Tolko Industries Ltd. (“Tolko”) appealed a determination by the Fire Centre Manager, Kamloops Fire Centre, Ministry of Forests and Range, that Tolko contravened sections 6(3)(b)(ii), 6(4)(a), and 6(4)(c) of the Wildfire Regulation in relation to timber harvesting activities that caused a forest fire.

The fire started on September 8, 2006, in a cut block where Tolko’s contractor, Highmark Developments Incorporated (“Highmark”), was operating a feller-buncher.  The conditions at the site were dry and hot, and the Fire Danger Class Rating was 5 (extreme).  A water tank was to be delivered to the site that day, but it was delayed by one day.  A D7 crawler-tractor arrived at the site approximately two hours after harvesting commenced.  Early in the afternoon, the feller-buncher operator discovered a fire in part of the cut block where he had been operating earlier that day.  He attempted to build a fire guard using the tractor, but he soon realized that the fire was growing too quickly for him to control, and he called for assistance.  The Ministry dispatched initial attack crews and air tankers to the fire.  An investigation revealed that the fire was caused by the feller-buncher’s metal tracks striking rocks and causing sparks.  The Ministry estimated that fire damaged Crown forest resources valued at $1,259,412.  The Province’s fire suppression costs were $726,128.11.

On September 3, 2008, the Fire Centre Manager determined that Highland, while working under the direction and control of Tolko, failed to have an adequate fire suppression system on site during high risk activity, failed to ensure that their fire watcher could reasonably see the site of the high risk activity, and failed to ensure that their fire watcher actively watched and patrolled for sparks and fires on the site of the high risk activity.  The Fire Centre Manager determined that Highland could not rely on any of the defences set out in the Wildfire Act, but Tolko could rely on the defence of due diligence because Tolko took all reasonable care to prevent the fire.  Nevertheless, the Fire Centre Manager determined that Tolko was vicariously liable for the contraventions based on section 30 of the Wildfire Act.  However, he concluded that Tolko should pay no administrative penalties.  The determination did not address the recovery of fire suppression costs or damages to the Crown.

Tolko appealed the determination on several grounds, including that the Fire Centre Manager had erred by failing to find that Tolko had an independent due diligence defence to the vicarious liability provisions of the Wildfire Act.

Before the appeal was heard, Tolko requested that the appeal be held in abeyance.  After several months, the parties reached an agreement to settle Tolko’s appeal.  By consent of those parties, the Commission ordered that the determination against Tolko was rescinded.

Accordingly, the appeal was allowed.