Decision Date: August 19, 2013

Panel: Cindy Derkaz, James Hackett, O’Brian Blackall

Keywords: Forest and Range Practices Act – s. 110; Wildfire Act – ss. 7(4), 26, 27(1), 28(1), 63; fire hazard; hazard abatement order; notice; cost recovery order; remediation order; penalty; due diligence; bankruptcy; estoppel

Ken Damon Oler appealed a determination issued by the Fire Centre Manager (the “Manager”), Kamloops Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Manager determined that Mr. Oler had contravened section 7(4) of the Wildfire Act by failing to comply with a fire hazard abatement order issued by the Ministry in June 2009. When the hazard abatement order was issued, Mr. Oler held a timber sale licence, and pursuant to that licence, he had harvested timber on two cut blocks but left felled timber on one of the cut blocks. The hazard abatement order was sent by registered mail to the mailing address Mr. Oler had provided in his application for the timber sale licence. The order required Mr. Oler to remove the felled timber by November 19, 2009, because it constituted a fire hazard. He did not do so.

In April 2009, Mr. Oler’s company filed an assignment in bankruptcy, and a trustee took over his business. On November 12, 2009, Mr. Oler declared personal bankruptcy. Also, on November 12, 2009, Mr. Oler requested an extension of his timber sale licence, which was set to expire on November 19, 2009. He did not notify the Ministry of the bankruptcy proceedings, and by some oversight the timber sale licence was not included as an asset in the bankruptcy proceedings. The Ministry granted a one-year extension to the timber sale licence.

In July 2010, a forest fire spread to the cut block, and damaged or destroyed most of the felled timber.

In November 2011, the Manager determined that Mr. Oler had contravened section 7(4) of the Wildfire Act. The Manager found that none of the statutory defences in the Wildfire Act applied, and he levied an administrative penalty of $5,000 against Mr. Oler. The Manager also issued a cost recovery order requiring Mr. Oler to pay $43,692.56 for the value of the Crown timber on the cut block that was damaged or destroyed, and a remediation order requiring Mr. Oler to remove the remaining felled timber and any existing fire hazard from the cut block by April 2012.

Mr. Oler appealed the Manager’s determination on the grounds that: he did not receive written notice of the hazard abatement order, and therefore, did not contravene section 7(4) of the Wildfire Act; any liability he may have had with respect to the hazard abatement order was extinguished by the bankruptcy proceedings; the Ministry miscalculated the value of the Crown timber that was damaged or destroyed; and, the remediation order should be reconsidered given the amount of time that has passed, and if any remediation is required, he should have been given a reasonable amount of time to complete it.

The Commission found that Mr. Oler was given written notice of the hazard abatement order as required by the Wildfire Act. Specifically, section 63 of the Wildfire Act adopts section 110 of the Forest and Range Practices Act. Section 110(1) of that Act states that a notice required to be given to a person under the Act may be given to the person by registered mail to the person’s last known postal address. Further, section 110(2) of that Act states that a notice that is mailed to a person by registered mail under subsection (1) “is conclusively deemed to be received by the person on the eighth day after it is mailed.” The Commission found that the Ministry gave Mr. Oler notice of the hazard abatement order by sending it via registered mail to the mailing address that the Ministry had on record for him at that time, and therefore, it was conclusively deemed to have been received by him on the eighth day after it was mailed.

Next, the Commission considered whether the bankruptcy proceedings relieved Mr. Oler from the obligation to comply with the hazard abatement order, and/or the determination. The Commission found that the bankruptcy constituted a default by Mr. Oler of his obligations under the timber sale licence, and the Ministry could have cancelled the licence and taken steps to abate the fire hazard if it had known of the bankruptcy. The Ministry was unable to exercise those options because the licence was not included in the bankruptcy, and Mr. Oler continued to represent himself as being entitled to an extension of the licence even though he knew that he was in bankruptcy. In these circumstances, the Commission found that the doctrine of estoppel applied, and it would be unjust to allow Mr. Oler to avoid responsibility for the order or the determination as a result of the bankruptcy.

Regarding the statutory defences under section 29 of the Wildfire Act, the Commission found that none applied in the circumstances. In particular, the Commission found that Mr. Oler was aware that the felled timber presented a fire hazard, and as a businessman with many years of forestry experience, it is reasonable to expect that he would have notified the Ministry in March 2009 of his financial difficulties and sought relief from his obligations under the licence. Instead, he continued to deal with the Ministry as if the licence was still under his control, and he sought an extension to the licence shortly before it would have expired, which coincided with the deadline for compliance with the hazard abatement order. The Commission concluded that the due diligence defence did not apply, because Mr. Oler did not take reasonable steps to address the fire hazard and comply with the order. Further, there was no evidence that any of the other statutory defences applied.

Finally, the Commission referred the administrative penalty, cost recovery order, and remediation order back to the Manager for reconsideration, with directions. The Commission directed the Manager to reconsider whether the cost recovery order should be removed from the determination, given that the Ministry had subsequently issued several amended waste assessments to Mr. Oler that could be deducted from the value of the damaged or destroyed timber to avoid double-billing. The Commission also directed the Manager to reconsider the remediation order based on the current site conditions, given the time that had passed, and to order whatever remediation he considers to be necessary within a reasonable amount of time. In addition, the Commission directed the Manager to reconsider whether the administrative penalty should be increased, if Mr. Oler is not required to pay for the damaged or destroyed timber or the remediation of the cut block.

Accordingly, the appeal was allowed, in part.