Decision Date: October 2, 2018

Panel: Susan E. Ross

Keywords: Wildfire Act – ss. 6(2), 27, 29(b); Wildfire Regulation – ss. 6(2), 6(3)(a); wildfire; statutory defence; mistake of fact; rule against multiple convictions; R. v. Kienapple, [1975] 1 S.C.R. 729; administrative penalty; reforestation costs

The Forest Practices Board appealed two decisions issued by the Executive Director (the “Director”), BC Wildfire Service, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), under the Wildfire Act. Section 40(1)(a) of that Act provides the FPB with the authority to appeal enforcement decisions and penalties imposed under the Wildfire Act. The FPB was established by the Legislature as the public’s “watchdog” on forest practices in BC, and to represent the public interest.

391605 British Columbia Ltd. (“391605 BC Ltd.”) held a Timber Sale Licence (“TSL”) in the Stewart Nechako Natural Resource District. 391605 BC Ltd. and Canfor Forest Products Ltd. (“Canfor”) had a log purchase agreement for timber from the TSL, and they agreed that Canfor would select and instruct the timber harvesting contractor for the TSL. Although both 391605 BC Ltd. and Canfor had authority to supervise timber harvesting in the TSL, Canfor made decisions about harvesting operations on behalf of 391605 BC Ltd., including the selection of weather data to determine the Fire Danger Class rating in harvest areas.

Canfor selected D.N.T. Contracting Ltd. (“DNT”) to harvest two cutblocks in the TSL. Canfor instructed DNT to use data from the Kluskus weather station (“Kluskus”) to determine the Fire Danger Class rating and any applicable restrictions on harvesting at the cutblocks. DNT monitored the Kluskus weather data and Fire Danger Class rating on a daily basis. Canfor also monitored the Kluskus weather data to provide direction to DNT. However, Kluskus was 37.4 kilometres away from the harvesting site, whereas the Chilako weather station (“Chilako”) was only 27.4 kilometres away. Chilako was also representative of the area, whereas Kluskus was not.

A wildfire started in a cutblock on August 11, 2014, when DNT’s feller buncher machine struck rocks while harvesting. A DNT employee discovered the fire. DNT attempted to extinguish it without success. The BC Wildfire Service was called in, and incurred fire suppression costs of over $700,000.

The Fire Danger Class rating at Kluskus was “high” from August 4 to 10, and increased to “extreme” on August 11. The Fire Danger Class rating at Chilako was “extreme” from August 1 to 11. When the Fire Danger Class rating is “extreme”, the Wildfire Regulation requires the cessation of high risk activity between 1:00 pm and sunset. After three consecutive days of “extreme” rating, all high risk activity must cease. Had DNT used Chilako instead of Kluskus to determine the Fire Danger Class rating, it would have ceased harvesting after August 3.

Following an investigation by the Ministry, the Director concluded that DNT and 391605 BC Ltd. had contravened section 6(2) of the Wildfire Act and sections 6(2) and 6(3)(a) of the Wildfire Regulation, by carrying out timber harvesting when the applicable Fire Danger Class rating was “extreme”, and a complete cessation of high risk activities was required under the Wildfire Regulation.

However, the Director found that the contraventions were excused by the defence of mistake of fact under section 29(b) of the Wildfire Act. The Director found that 391605 BC Ltd. reasonably relied on Canfor to instruct DNT on the selection of representative weather data, and DNT reasonably relied on Canfor’s direction to use Kluskus. The Director found that their reasonable reliance on Canfor’s identification of Kluskus as the appropriate weather station to monitor was a mistake of fact integral to the contraventions.

The Forest Practices Board (“FPB”) appealed the Director’s decisions. The FPB argued that the Director erred in applying the defence of mistake of fact. The FPB submitted that 391605 BC Ltd. and DNT did not establish that Canfor, as an agent of 391605 BC Ltd., exercised reasonable care in selecting Kluskus as the representative weather station, or that DNT, as 391605 BC Ltd.’s contractor, exercised reasonable care in relying on Canfor’s direction to use the Kluskus weather data. The FPB asked the Commission to impose a $10,000 administrative penalty, and order 391605 BC Ltd. and DNT to pay for the value of the damaged or destroyed Crown timber plus reforestation costs.

The parties agreed that section 29 of the Wildfire Regulation exempted DNT and 391605 BC Ltd. from liability for the Ministry’s fire control costs.

The Commission found that Canfor had intended to select the most representative weather data, and comply with the legislation. Canfor’s mistake in selecting Kluskus was an honest one, on which 391605 BC Ltd. and DNT honestly relied, and they too intended to comply with the legislation. However, the Commission found that, based on the relevant case law, an honestly held belief in a mistaken set of facts is not enough to establish the defence of mistake of fact; rather, the belief must also be reasonably held. The proper inquiry was whether 391605 BC Ltd. and DNT exercised reasonable care to know the true facts relevant to selecting representative weather data and determining the Fire Danger Class rating.

The Commission found that, given the nature of their relationship, Canfor’s conduct was also 391605 BC Ltd.’s conduct, and the only belief 391605 BC Ltd. had in the existence of mistaken facts was Canfor’s belief. The Commission also found that the evidence did not establish that Canfor’s selection of the Kluskus weather station, whether on the basis of proximity alone or in conjunction with other factors, was an exercise of reasonable care. Canfor’s error in selecting the wrong weather station was not reasonable. Consequently, the defence of mistake of fact did not apply to 391605 BC Ltd.

Turning to whether DNT, the Commission noted that DNT was contracted by 391605 BC Ltd. through Canfor, and DNT relied on Canfor to select the representative weather station. DNT knew that it was operating under at least a “high” Fire Danger Class rating from August 4, and it understood the restrictions that would apply if the fire risk became “extreme”. Although Kluskus was not the most proximate or representative weather station, it was not so distant that it should have been obviously incorrect to DNT. Based on the evidence, the Commission concluded that DNT took reasonable care to know the relevant facts, and the defence of mistake of fact applied to DNT.

Next, the Commission considered whether the common law rule against multiple convictions prevented a finding that 391605 BC Ltd. had contravened both section 6(2) of the Wildfire Act and section 6(3)(a) of the Wildfire Regulation for harvesting when prohibited by risk of fire. The Commission considered the relevant case law, and the relevant provisions of the Wildfire Act. The Commission found that section 53(1) of the Wildfire Act restricts the Ministry from undertaking both offence and administrative penalty proceedings for the same contravention, but section 53(2) allows the Ministry to make orders with respect to the recovery of costs or remediation regardless of section 53(1). Since a contravention order is a precondition to a cost recovery or remediation order under the Wildfire Act, section 53 necessarily allows duplicative contraventions between offence proceedings and administrative proceedings where administrative cost recovery or remediation orders are involved. Since the Wildfire Act is otherwise silent on the rule against multiple convictions, this infers that the common law rule barring multiple convictions for the same wrongful conduct applies to multiple administrative contraventions under the Wildfire Act.

The Commission found that section 6(2) of the Wildfire Act and section 6(3)(a) of the Wildfire Regulation address the same wrongful conduct, and therefore, based on the rule against multiple convictions, the Director should not have found that 391605 BC Ltd. contravened both of those statutory provisions. There should have been a finding of only one contravention, in respect of the more specific provision. Accordingly, the Commission held that 391605 BC Ltd. contravened section 6(2) of the Wildfire Regulation by failing to determine the Fire Danger Class rating by reference to representative weather data, and section 6(3)(a) of the Wildfire Regulation by carrying out harvesting while prohibited by the Wildfire Regulation.

Finally, the Commission considered whether to levy an administrative penalty and/or a cost recovery order against 391605 BC Ltd. The Commission decided not to order 391605 BC Ltd. to pay the value of damaged or destroyed Crown timber, because the Ministry did not request such an order. However, the Commission found that an order for reforestation costs should be remitted to the Director to determine the appropriate amount. Also, based on the considerations listed in section 27(3) of the Wildfire Act, the Commission held that an administrative penalty of $10,000 (i.e., $5,000 for each of contravention) should be levied against 391605 BC Ltd.

Accordingly, the FPB’s appeal relating to DNT (2017-WFA-005) was dismissed, and the FPB’s appeal relating to 391605 BC Ltd. (2017-WFA-006) was allowed.