Decision Date: January 10, 2012

Panel: Robert Wickett, Bruce Devitt, Al Gorley

Keywords: Wildfire Act – s. 29; Wildfire Regulation – ss. 23(3), 23(4); burn plan; prescribed fire; penalty; due diligence; officially induced error

Louisiana-Pacific Canada Ltd. (“LP”) appealed a determination issued by the Manager, South East Fire Centre, Ministry of Forests and Range (the “Ministry”), that LP had contravened two sections of the Wildfire Regulation (the “Regulation”).

The contraventions were in relation to a prescribed burn ignited by LP under a plan that was approved by the Ministry. The plan authorized LP to burn slash on a cutblock. The plan did not include a “wet line”, which involves sprinklers and/or personnel with water hoses to contain the fire. Rather, Mr. King, LP’s manager in charge of the prescribed burn, retained a retired Ministry staff with firefighting expertise (the “Consultant”) to assist in planning and supervising the burn.

On September 27, 2006, the burn was ignited following a test burn, based on instructions from Mr. King with the Consultant’s concurrence. Immediately, the fire began burning much more intensely than expected, and large fuels ignited. The Consultant concluded that the fire could not be controlled and would escape the intended burn area. Mr. King was unable to start the two water pumps at the burn site. In an attempt to minimize what they considered to be the fire’s inevitable escape, the Consultant suggested that they ignite an area adjacent to the burn site, to burn off fuel and attempt to pull the two fires towards one another at the centre of the cutblock. Mr. King accepted that advice and ignited the adjacent area, but that did not contain the fire. Mr. King remained at the site until dark, at which time the fire appeared to be stable. On September 28, 2006, LP took some further steps to contain the fire, including requesting a helicopter and Ministry firefighters to help fight the fire. The helicopter arrived late in the day. That evening, high winds caused a spot fire in an adjacent cutblock.

On September 29, 2006, the Ministry firefighters began working at the site. On September 30, no effort was made to fight the fire due to severe winds. The fire continued to spread over the next few days, as more spot fires ignited. The fire was fully extinguished by rain and snow on October 6, 2006. In total, 47.6 hectares of Crown land were affected by the fire, and 8388 cubic metres of Crown timber were destroyed or damaged.

Following a Ministry investigation, the Manager issued the determination and penalties. He found that LP had contravened: section 23(3)(a) of the Regulation by igniting the area outside of the prescribed burn area in an attempt to stop the escape, when such action was not necessary or required; section 23(3)(b) of the Regulation by allowing the fire to escape; and section 23(4)(a) of the Regulation by failing to immediately carry out fire control and extinguish, if practicable, the escaped prescribed burn. The Manager also found that LP could not rely on the statutory defences of due diligence or officially induced error. The Manager levied a penalty of $10,000 against LP for contravening section 23(3), a further penalty of $10,000 for contravening section 23(4), and he required LP to pay $1,128.18 for Crown resources that were damaged or destroyed as a result of the contraventions.

The Commission found that igniting the area adjacent to the intended burn area was not part of the burn plan. However, the Commission also found that igniting the adjacent area was a response to the immediate concern of an escape, and as such, was not the result of misunderstanding or disregarding the burn plan. In that context, the Commission held that LP’s actions were not the type of “mischief” that is intended to be addressed by section 23(3)(a) of the Regulation. The Commission found that Mr. King and the Consultant reasonably concluded that the fire was out of control, and that immediate fire control action was necessary to mitigate damage from the anticipated escape. Consequently, the Commission concluded that igniting the adjacent area did not breach section 23(3)(a) of the Regulation. However, the Commission held that there was no dispute that LP allowed the fire to escape the intended burn area, contrary to section 23(3)(b) of the Regulation.

Next, the Commission considered whether LP failed to immediately carry out fire control and extinguish the fire, if practicable, once the fire escaped. The Commission found that, when LP ignited the prescribed burn, it did have all of the resources on site that were required by the burn plan to prevent an escape. Specifically, LP did not have the required number of personnel, length of hose, or a 1000-litre portable water tank. The Commission concluded that LP did not immediately undertake fire control activities on September 27 or 28, 2006, before the onset of high winds, contrary to section 23(4)(a) of the Regulation, because LP was not in a position to do so.

Regarding the statutory defences, the Commission found that the defence of due diligence did not apply to LP, because the contraventions were foreseeable, and LP lacked a proper system and procedures to avoid the contraventions. The Commission also found that LP failed to check the moisture level in large fuels at the site before igniting the prescribed burn. In addition, the Commission found that the defence of officially induced error did not apply, because there was no evidence of any erroneous representation of law by the Ministry in relation to LP, and there was no evidence of a mistake of fact.

In addition, the Commission rejected LP’s arguments that the Manager was biased, and that there was an excessive delay in the Ministry’s investigation and issuance of the determination.

Finally, the Commission concluded that the penalty should be reduced by $5,000 based on its finding that LP did not breach section 23(3)(a) of the Regulation.

Accordingly, the appeal was allowed, in part.