Decision Date: May 2, 2017

Panel: Maureen Baird, Q.C.

Keywords: Wildfire Act – ss. 5(1), 27; Wildfire Regulation – s. 2(1); fire suppression costs; cost recovery order; administrative penalty; open fire; fuel break

Madeline Oker appealed a determination issued by the Deputy Fire Centre Manager (the “Manager”), Kamloops Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The determination arose from the following circumstances. In late August or early September 2012, Ms. Oker and another person burned some debris piles on Crown land near Fort St. John. On September 13, 2012, a wildfire ignited in that area. Firefighters from the Ministry extinguished the fire, which burned approximately 8.7 hectares of land.

Following an investigation by Ministry staff, the Manager offered Ms. Oker an opportunity to be heard prior to determining whether she had contravened the Regulation. She did not respond to the invitation.

Based on evidence provided by Ministry investigators, the Manager determined that the wildfire was likely caused by a flare up of embers from one of the debris piles. The Manager determined that Ms. Oker had contravened sections 5(1) and 10(3) of the Wildfire Act (the “Act”), respectively, by not complying with the requirements in section 21(1) of the Wildfire Regulation (the “Regulation”) with respect to lighting, fueling or using an open fire, and by lighting debris piles on fire when open fires were prohibited. The Manager levied an administrative penalty of $600 against Ms. Oker for the contraventions, and ordered her to pay the Ministry’s fire suppression costs of $113,776.78.

Before the appeal was heard, the Government advised that there was insufficient proof that Ms. Oker had contravened section 10(3) of the Act. Accordingly, the Commission rescinded that portion of the determination, and the appeal proceeded based on the issue of whether there was a contravention of section 5(1) of the Act.

Ms. Oker submitted that she did not contravene section 5(1) of the Act. She also submitted that the Manager had made various errors, including failing to consider relevant information, failing to speak with her regarding the circumstances of the fire, and relying on flawed or unreliable information from Ministry investigators. In addition, she argued that there was a lack of procedural fairness in the Manager’s decision-making process, and the Ministry investigators were biased, among other things. She requested that the contravention be rescinded, the administrative penalty be waived, and the order to pay fire suppression costs be reduced or eliminated.

The appeal was conducted as a new hearing of the matter, in which both parties had an opportunity to present document evidence, examine and cross-examine witnesses, and make arguments on the facts and the law. As such, the Commission found that the appeal hearing cured any procedural errors that the Manager may have made, including the alleged failure to consider relevant information.

In addition, the Commission found that Ms. Oker provided no submissions or evidence regarding the allegations of bias, and therefore, that ground for appeal was either abandoned or was not made out.

In her testimony, Ms. Oker admitted that she lit several debris piles, and one of those debris piles was the origin of the wildfire. She testified regarding how she tended the fires she had lit, and only lit them in the evening when it was cooler and there was no wind. She also advised that she had water nearby when she was burning the debris piles, she made a fuel break around each fire using a rake, and she poured water on the fires afterwards. However, she did not check the fire hazard rating or the weather report before she lit the fires. She believed that an underground tree root caused the wildfire but she admitted that, at the time, she did not know roots could cause fires to spread, and she did not feel the ground to see if it was still hot before she left the area.

Based on Ms. Oker’s evidence and the evidence of the Ministry’s investigators, the Commission found that Ms. Oker had contravened section 21(1)(b) of the Regulation by lighting a fire when it was unsafe to do so, based the conditions when she lit the debris piles. Those conditions included high temperatures, low humidity, wind, extremely dry ground conditions, and a very high fire danger rating. The Commission also found that she contravened section 21(1)(c) of the Regulation by not establishing a fuel break around the debris piles. Photographs showed no evidence of a band of bare soil around the burn piles. Instead, the photographs showed burnt vegetation right up to the ashes of the debris pile. Further, the Commission found that she contravened section 21(1)(e) of the Regulation by not ensuring that the fire was adequately extinguished before she left the burn area. Consequently, the Commission concluded that she had not met the requirements of sections 21(1)(b),(c), and (e) of the Regulation contrary to section 5(1) of the Act.

Next, the Commission considered whether Ms. Oker had established the statutory defences of due diligence or mistake of fact. The Commission found that Ms. Oker had failed to make inquiries about the fire danger rating or the weather conditions before lighting the debris piles. Although she may have believed she took sufficient steps to establish a fuel break around the burn area and extinguish the burnt debris piles, the Commission found that neither the defence of due diligence nor mistake of fact applied based on the evidence.

Finally, the Commission reviewed the factors to be considered when assessing administrative penalties under section 27(3) of the Act, and concluded that the $600 administrative penalty was on the low end of the range regardless of whether it applied to one contravention or two, and was reasonable in the circumstances. Regarding the order to pay the Ministry’s fire suppression costs, the Commission found that although Ms. Oker was experiencing financial hardship and may be unable to pay those costs, the legislation does not recognize an inability to pay as a basis for not ordering a person to pay for fire suppression costs. Therefore, both the penalty and the order to pay fire suppression costs were confirmed.

Accordingly, the appeal was dismissed.