Decision Date: April 27, 2020

Panel: Darrell Le Houillier

Keywords: Wildfire Act – s. 6(1); Administrative Tribunals Act – ss. 34(3)(b), 40; contravention; cost recovery order; administrative penalty; document disclosure application; personal information; privacy; confidentiality; privilege

J. Sarver Trucking Ltd. (the “Company”) held a timber sale licence in the Peace Region of the Province. In early 2016, the Company completed harvesting in a cutblock, and received authorization to burn debris piles at the site. On or about April 8, 2016, the Company’s owner and an associate went to the cutblock to burn some remaining debris piles. After lighting the piles, they remained on site for most of the day and left in the afternoon. Mr. Sarver had planned to return to the site the following day, but he did not return.

On April 18, 2016, the Prince George Fire Centre discovered wildfire #880046 (the “Wildfire”). The Wildfire reached a final size of 15,739 hectares. Investigators from the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”) determined that the Wildfire had ignited and spread from burn piles on the Company’s cutblock.

The Manager of the Ministry’s Kamloops Fire Centre determined that the unattended burn piles on the cutblock had caused the Wildfire in contravention of section 6(1) of the Wildfire Act. The Manager ordered the Company to pay the government’s fire suppression costs associated with the Wildfire, totalling almost $12,000,000, and $3,697,908.74 for the value of Crown timber and other forest land resources that were damaged or destroyed as a result of the contravention. The Manager also imposed an administrative penalty of $20,000 against the Company.

The Company appealed the Manager’s determination and order.

Before the appeal was heard, the Company applied to the Commission for an order requiring the Manager to produce unredacted copies of Fire Origin and Cause Reports for four other wildfires. The Company submitted that at least 10 wildfires were deliberately set in the Peace Region on April 18, 2016, and the Wildfire may have also been caused by arson. In addition, the Company submitted that the reports might assist in attacking the quality of the Ministry’s investigation of the Wildfire.

The Manager submitted that two of the reports were irrelevant, as neither fire was arson-related and both were discovered after April 18, 2016. The Manager opposed the disclosure of unredacted copies of the other two reports based on concerns about the protection of third parties’ personal information. The redacted information identified landowners, neighbours, and persons who reported the wildfires in question. The Manager argued that people would be less likely to report wildfires, and be candid in doing so, if they knew that their personal information could be disclosed in unrelated litigation.

The Commission considered whether the reports may be relevant to proving, or responding to, an issue in the appeal. There was no question that the Manager had possession and control of the reports.

The Commission found that the reports met the threshold of relevance for disclosure. The reports would allow the Company to compare the investigations of other wildfires discovered in and around the same time and place as the Wildfire. The comparison might advance the Company’s case or allow the Company to attack the opposing case.

Regarding third parties’ personal information in the reports, the Commission concluded that this information may be relevant to the appeal. The Company might discover information from the third parties that could assist in assessing the adequacy or accuracy of wildfire investigations at the relevant time. Furthermore, the Commission noted that “informant privilege” only arises where the police guarantee protection and confidentiality to an informant in a criminal investigation exchange for useful information. Here, there was no guarantee of protection and confidentiality in investigations of wildfires. The risk to witnesses here was less than the risk incurred by those who report criminal matters to the police.

Accordingly, the Commission ordered the Manager to disclose unredacted copies of the reports, but the Commission required the Company and its legal counsel to maintain the confidentiality of identifying information in the reports and to use it only for the purposes of the appeal.

Accordingly, the application for document disclosure was granted, subject to those conditions.