Decision Date: April 8, 2015

Panel: Gabriella Lang

Keywords: Wildfire Act – ss. 6(1) 27(1)(a) and (b), and 29(c); Wildfire Regulation s.22(1); fire suppression costs; cost recovery order; procedural fairness; due diligence; administrative penalty

Frank Schlichting appealed a decision issued by the Fire Centre Manager (the “Manager”), Cariboo Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Manager found that Mr. Schlichting had contravened section 6(1) of the Wildfire Act and sections 22(1)(b),(d), (e)(i)(ii) and (f)(i) and (iii) of the Wildfire Regulation by burning debris 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 was fought by Ministry firefighters. The Manager issued an administrative penalty order of $1,000 under section 27(1)(a), as well as a cost recovery order under section 27(1)(b) of the Wildfire Act, which requires Mr. Schlichting to pay $7,524.62 for the Ministry’s fire control costs.

Mr. Schlichting had a provincial burn registration number, active from October 14, 2011, giving him permission to burn debris piles and windrows created from land clearing activities (industrial activities). At the time of the fire, he was burning debris on an area where he held a grazing lease.

Mr. Schlichting appealed the decision on numerous grounds, including that the Manager did not have all the facts; there was not full disclosure of all the evidence from Ministry staff; that he did not violate any of the provisions of section 22(1) of the Wildfire Regulation; that the Manager erred in applying section 27 of the Wildfire Act; and that the Manager breached procedural fairness in that he did not have an opportunity to subpoena or cross-examine witnesses from the Ministry.

The Commission held that it need not address at length Mr. Schlichting’s submissions alleging procedural fairness, 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 appeal hearing, Mr. Schlichting received full disclosure of the relevant Ministry documents that were not previously disclosed to him.

In addition, the Commission found that Mr. Schlichting did not comply with the requirements in several subsections of section 22(1) of the Wildfire Regulation regarding open burning. He also contravened section 6(1) of the Wildfire Act by conducting open burning on forest land or grass land outside of the prescribed circumstances while conducting an industrial activity (i.e., land clearing). Furthermore, the Commission found that he 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 the burn piles and smoldering windrows given the windy and dry conditions of the day and on the days leading up to the incident, and especially the weather conditions and the fire danger rating on that day. In addition, he failed to establish adequate fuel breaks around the burn piles and windrows, as the evidence showed that the fuels adjacent to the burn area consisted of large stands of timber that were susceptible to a spreading fire. Based on the evidence, the Commission found there were no factors that would mitigate against ordering Mr. Schlichting to pay the full amount of the Ministry’s fire control costs.

The Commission also found that administrative penalty was appropriate in the circumstances.

Accordingly, the appeal was dismissed.