Decision Date: May 27, 2021

Panel: Mike Tourigny, Teresa Salamone, Ian Miller

Keywords: Wildfire Act – ss. 6(1), 10(4), 29; Wildfire Regulation – ss. 22(1)(d), (e), (f), 22(2)(b), 22(3), 29; cost recovery order; contravention; penalty; due diligence; mistake of fact; holdover fire; open burning; hazard abatement; woody debris; silviculture treatment; timber harvesting

Tolko Industries Ltd. (“Tolko”) appealed a determination that it had contravened several sections of the Wildfire Act (the “Act”) and the Wildfire Regulation (the “Regulation”) in relation to its open burning of woody debris piles, the administrative penalty for those contraventions, and a cost recovery order related to one wildfire.

In late 2015 and early 2016, Tolko hired a contractor to burn thousands of piles of debris left over from harvesting timber in cutblocks in two Forest Districts. The debris pile burning was authorized but had to be completed by specific dates. In April 2016, after the burn authorizations had expired, four wildfires occurred in the vicinity of Tolko’s debris pile burns. The BC Wildfire Service responded to the largest of the four wildfires, and the government incurred costs of $343,495.50 to fight that wildfire.

The Deputy Manager (the “Manager”) of the Coastal Fire Centre, in the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”), determined that the wildfires were caused by holdover fires that remained from Tolko’s debris pile burns. The Manager found that Tolko contravened section 6(1) of the Act when it failed to: take necessary precautions to ensure that the debris pile burns were contained in the burn area (section 22(1)(d) of the Regulation); establish a fuel break around the burn area (section 22(1)(e) of the Regulation); and, ensure that the fuel break was maintained (section 22(1)(f)(i) of the Regulation). In addition, the Manager found that: the debris pile burns were not extinguished by the dates specified in the burn authorizations (section 22(2)(b) of the Regulation); in the largest wildfire, Tolko failed to ensure that the debris pile burn did not escape the cutblock where it originated (section 22(3) of the Regulation); and, some of the burns were not extinguished by the date required in an order prohibiting open fires in the area (section 10(4) of the Act).

The Manager ordered Tolko to pay a $15,000 administrative penalty, $343,495.20 for the government’s fire control costs, $84,937 for damaged or destroyed Crown timber and other forest resources, and $46,223 for reforestation costs.

Tolko appealed the Manager’s decision on numerous grounds. Tolko submitted that it did not commit the contraventions. Alternatively, Tolko submitted that it was not liable for the contraventions because the defences of due diligence and mistake of fact applied, and that section 29(b) of the Regulation applied to Tolko such that it could not be ordered to pay the government’s fire control costs.

Based on the evidence, the Commission agreed with the Manager that Tolko contravened section 22(1)(d) of the Regulation in relation to the debris pile burns that caused three of the four wildfires, and therefore, Tolko also contravened section 6(1) of the Act in relation those wildfires. However, the Commission held that Tolko did not contravene section 22(1)(d) of the Regulation in relation to the debris pile burn that caused one small wildfire, and Tolko did not contravene sections 22(1)(e) and (f)(i) of the Regulation in relation to all four wildfires. Further, in all four wildfires, the debris pile burns were not extinguished by the dates specified in the burn authorizations (section 22(2)(b) of the Regulation), and in one wildfire, Tolko failed to ensure that the debris pile burns did not escape the cutblock where it originated (section 22(3) of the Regulation). For three of the four wildfires, Tolko’s burns were not extinguished by the date required in an order prohibiting open fires in the area (section 10(4) of the Act).

Next, the Commission considered whether Tolko established a defence to the contraventions. The Commission found that Tolko failed to establish the defence of mistake of fact. Tolko knew or ought to have known about the hazard posed by holdover fires in its debris pile burns. Tolko knew about the likelihood of a holdover fire in burns, as confirmed by Tolko’s standard operating procedures and its practice of using infra-red scanning on debris piles burnt after the middle of January. Moreover, Tolko failed to establish the defence of due diligence, as it did not take all reasonable steps to prevent the contraventions. Tolko’s systems to prevent holdover fires from causing wildfires, including Tolko’s standard operating procedures and infra-red scanning procedures, were insufficient, as were the steps it took to ensure the effective operation of those systems.

Next, the Commission considered whether Tolko met the requirements of section 29(b) of the Regulation such that it could not be ordered to pay the government’s fire control costs. The Commission found that section 29(b) applied to Tolko because: Tolko carried out its timber harvesting in the area under agreements under the Forest Act; Tolko was not in arrears for the annual rent payable on its harvesting agreements; Tolko did not wilfully cause or contribute to the start or spread of the wildfire on which the government incurred fire control costs; and, the wildfire that led to the government’s fire control costs resulted from debris pile burning that was part of Tolko’s timber harvesting or silviculture treatments. However, this finding did not affect Tolko’s responsibility for the value of Crown timber and forest resources that were damaged or destroyed as a result of the contraventions, and the cost of reforestation in the burned area.

Finally, the Commission found that the $15,000 penalty was appropriate for the contraventions.

Accordingly, the Commission varied the Manager’s determination by rescinding some of the contraventions and the order to pay the government’s fire control costs. The Commission confirmed the remainder of the determination. The appeal was allowed, in part.