Decision Date: June 3, 2021

Panel: Darrell Le Houillier

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

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 fires to burn debris on his property near Prince George (the “Property”). The Appellant had a valid burn registration number for the fires on his property. The Appellant had no water at the site of his fires, but he built a fuel break around the intended burn area.

Two days after lighting the fires on his property, windblown embers from the remnants of his fires escaped from the intended burn area and ignited a wildfire. The Appellant attempted to control the fire, but he was unsuccessful. Ministry firefighters responded to the wildfire from August 19 to 24, 2015. By the time the wildfire was declared out on September 22, 2015, it was approximately 11.85 hectares in size.

The Manager determined that windblown embers from the Appellant’s debris pile fires caused the wildfire. The Manager ordered the Appellant to pay the government’s fire suppression costs of $208,850.60 under section 25(2) of the Wildfire Act (the “Act”).

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

The appeal was heard in two stages. In the first stage, the Commission considered the proper interpretation of sections 25(2) and (3) of the Act. On May 10, 2019, the Commission issued a decision on the first stage (Petrus Jacobus Van Der Merwe v. Government of British Columbia, Decision No. 2018-WFA-001(a)). The Commission concluded that sections 25(2) and (3) of the Act required the Manager to make a finding of fact on whether 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. Those sections of the Act did not require the Manager to find that the Appellant wilfully or negligently caused or contributed to the wildfire or the spread of the wildfire, or to assess whether the Appellant was duly diligent. The intent of section 25 is to make certain persons, who are in a position to control activities on the land from which a wildfire originates, responsible for the consequences of activities on their land that cause or contribute to a wildfire or its spread.

In the second stage of the appeal process, the Commission considered whether the Appellant had caused or contributed to the wildfire or the spread of the wildfire. A report prepared by a Ministry fire investigator concluded that the cause of the wildfire was windblown burning debris from the fires that the Appellant ignited on his property on August 17, 2015. The Appellant agreed with that conclusion, but he claimed that unforeseen winds were the primary cause of the wildfire, and that his conduct did not otherwise cause or contribute to the wildfire.

After considering the parties’ evidence, the Commission found that on the morning of August 19, 2015, the Appellant had observed high wind gusts, and he put out a spot fire that had escaped his intended burn area. He had also put out a spot fire the day before. At approximately noon on August 19, the Appellant left the burn site and went for lunch, leaving the burn site unattended. While the Appellant was away having lunch, windblown burning debris escaped from the burn area and ignited two spot fires beyond the fuel break. One or both of those spot fires spread, becoming the wildfire.

Based on those findings of fact, the Commission concluded that the wind alone did not cause the wildfire. The Appellant’s ignition of the burn piles on August 17, together with his decision to leave the burn site unattended on August 19, despite his awareness of the high winds that day and his discovery that morning of a second spot fire beyond his intended burn area, caused or contributed to the wildfire. One or more of the fires he lit was still smouldering, unnoticed by him, when he left the burn site on August 19, 2015. Because he was away from the site, he did not notice when burning debris was carried by the wind over the fuel break and ignited two more spot fires which led to the wildfire.

In conclusion, the Commission found that the wildfire originated from the fires that the Appellant lit on his property, and the Appellant’s conduct in the days after he lit those fires caused or contributed to the wildfire or the spread of the wildfire. Although the Appellant did not intend to cause the wildfire, his conduct caused and/or contributed to the wildfire igniting and spreading. Section 25 does not require that the cause or contribution must be active, or that an omission does not qualify. These findings of fact met the requirements in section 25(2)(c) and 25(3) of the Act for ordering the Appellant pay the government’s costs to control the wildfire. Given the Appellant’s conduct, the Commission found that it was appropriate to exercise the discretion to make such an order.

Accordingly, the Commission confirmed the order, and dismissed the appeal.