Decision Date: May 10, 2019

Panel: Maureen E. Baird, Q.C.

Keywords: Wildfire Act – s. 25; wildfire; cost recovery order; fire suppression costs; causation; fault; negligence; statutory interpretation

Petrus Jacobus Van Der Merwe appealed an order issued in May 2018 by the Deputy Fire Centre Manager (the “Manager”), Kamloops Fire Centre, Ministry of Forests, Lands, Natural Resource Operations and rural Development (the “Ministry”).

The Order arose from the following circumstances. On August 17, 2015, the Appellant lit multiple open fires on his property near Prince George (the “Property”). The Appellant had a valid burn registration number for the fires he lit on his property.

Windblown embers from the burn piles escaped from the intended burn area, and lit a wildfire. The Appellant attempted to control the fire after he realized that it had escaped his intended burn area, but he was unsuccessful in containing the wildfire. Ministry firefighters responded to the wildfire from August 19 to 24, 2015. The wildfire was called out on September 22, 2015. By the time the wildfire was declared out, it was approximately 11.85 hectares in size.

The Manager determined that the debris piles lit by the Appellant were the cause of the wildfire. The Manager ordered him to pay the Ministry’s fire suppression costs totalling $208,850.60 under section 25(2) of the Wildfire Act.

The Appellant appealed the order. Among other things, he submitted that section 25(3) of the Wildfire Act required the Manager to prove that the wildfire or spread of the wildfire was caused by the Appellant’s negligent or wilful conduct before the Manager could impose a cost recovery order against the Appellant under section 25(2) of the Act. He submitted that the Manager made no findings of fact as to whether the Appellant’s negligent or wilful acts or omissions caused or contributed to the wildfire.

At the Appellant’s request, and with the Manager’s consent, the Commission first considered a question of statutory interpretation regarding the degree of fault required on the part of a person for a wildfire or spread of a wildfire before the minister is entitled to make a cost recovery order under section 25(2) of the Wildfire Act. If necessary, the Commission would later consider the merits of the order.

The Commission found that the Wildfire Act establishes two distinct schemes for ordering persons to pay the government’s wildfire control costs: (1) the cost recovery scheme provided in section 25; and, (2) the contravention determination scheme provided in sections 26 to 30. The contravention determination scheme includes administrative penalties, and also provides the Manager with the discretion to order a person who contravened the Wildfire Act or regulations to pay the government’s fire control costs “for a fire that resulted, directly or indirectly, from the contravention”. The contravention determination scheme is subject to statutory defences, including the defence of due diligence. Those statutory defences do not apply to cost recovery orders under section 25 of the Wildfire Act.

Applying the principles of statutory interpretation, the Commission found that the Appellant’s position sought to import into section 25(3) a due diligence defence, by effectively adding the words “through the owner’s negligent or willful act or omission” which does not appear in the legislation. If the legislature had intended for orders under section 25 to require a finding that a landowner’s “negligent or willful act or omission” caused or contributed to the fire or the spread of the fire, it could have included those words in section 25, but it did not. The fact that the statutory defences provided in the Wildfire Act do not apply to section 25, but do apply to determinations of contravention under section 26 (which can lead to cost recovery orders under section 27), clearly indicates that the legislature did not intend for a due diligence analysis to apply to cost recovery orders made under section 25.

The Commission also found that the cost recovery scheme in section 25 of the Wildfire Act only applies to persons who are in control of the land where a wildfire originated: the holder of a leasehold interest over Crown where the fire originated; the occupier of Crown land where the fire originated; or, the owner, leaseholder or occupier of private land where the fire originated. The Commission held that section 25 is intended to make such persons responsible for the consequences of fires that they ignite on their property and which cause or contribute to wildfires.

The Commission concluded that when sections 25(2) and (3) of the Act are read together, they required the Manager to make a finding of fact that the Appellant, as the owner of the land on which the wildfire originated, caused or contributed to the wildfire or the spread of the wildfire. On the face of the order, the Manager considered evidence regarding the ignition source of the wildfire, and made a finding of fact on that point, as required by section 25. However, given that the parties asked the Commission to decide only the statutory interpretation issue at this stage, the Commission made no findings with respect to the merits of the order.

Accordingly, the Commission directed that the appeal may proceed to a hearing on the merits of the order.