Decision Date: December 29, 2014

Panel: David H. Searle, C.M., Q.C.

Keywords: Wildfire Act – ss. 5(1), 25(2), 29; Wildfire Regulation – s. 20(2); fire suppression costs; cost recovery order; procedural fairness; due diligence

Robert Unger appealed a review decision issued by the Fire Centre Manager (the “Manager”), Cariboo Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Manager confirmed his previous determination that Mr. Unger had contravened section 5(1) of the Wildfire Act and section 20(2) of the Wildfire Regulation by lighting a camp fire on his land when it was unsafe to do so, failing to establish a fuel break around the fire, and allowing the fire to escape. The resulting wildfire burned for several days, and was fought by Ministry firefighters. The fire was not within the jurisdiction of a fire department. The Manager also confirmed his previous cost recovery order issued under section 25(2) of the Wildfire Act, which requires Mr. Unger to pay $861,356.09 for the Ministry’s fire control costs.

Mr. Unger appealed the review decision on numerous grounds, including that the Manager erred in interpreting and applying section 25 of the Wildfire Act and a Ministry policy that addressed levying cost recovery orders against land owners that cause wildfires. He also submitted that the Manager fettered his discretion and breached the principles of procedural fairness in making the cost recovery order. Further, he argued that the statutory defence of due diligence applied, such that he should not be liable for the contraventions.

The Commission held that it need not address at length Mr. Unger’s submissions alleging procedural unfairness, fettering of discretion, and other breaches of natural justice by the Manager, because the appeal hearing cured any procedural defects in the proceedings conducted by the Manager. Moreover, prior to the hearing before the Commission, Mr. Unger received full disclosure of the relevant Ministry documents that were not previously disclosed to him. Further, the Commission found that the Manager’s decisions did not turn on, and his discretion was not fettered by, Ministry policies or the opinions of other Ministry staff about those policies. Also, there was no institutional bias against the Appellant, based on the evidence. In any event, the Commission found that the Ministry policies in issue would not have relieved Mr. Unger from liability for the Ministry’s fire control costs, and the question of whether he had a valid insurance policy was irrelevant to the cost recovery order.

In addition, the Commission found that Mr. Unger did not exercise due diligence, as he did not take all reasonable care to avoid the contraventions. Specifically, he should have foreseen the risks associated with lighting the fire given the conditions that day, and especially the wind conditions. In addition, he failed to establish a fuel break around the fire, as the evidence showed that the fuels adjacent to the burn area were dry grass and brush, and the fire quickly spread to those fuels. Although he had a water pump available, it was too far away from the fire to be useful, and he was reduced to fighting the fire with a shovel and rake. He also had no means of communication on-site, and he had to rely on a neighbour to report the fire to the Ministry. Based on the evidence, the Commission found there were no factors that would mitigate against ordering Mr. Unger to pay the full amount of the Ministry’s fire control costs.

Accordingly, the appeal was denied.