Decision Date: March 17, 2021

Panel: Jeff Hand

Keywords: Wildfire Act – s. 27(1)(d); Wildfire Regulation – ss. 29, 31; fire suppression cost recovery order; discretion

AltaGas Ltd. (“AltaGas”) appealed an order issued in June 2019 by the Deputy Director (the “Director”), BC Wildfire Service, Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”).

AltaGas operates a hydroelectric plant approximately 450 km north of Smithers, British Columbia. On June 27, 2016, an AltaGas employee lit a fire to dispose of construction waste. The employee was following AltaGas’ standard operating procedures with respect to open burning. However, an ember escaped from the burn pit and ignited a wildfire. AltaGas promptly reported the fire. AltaGas employees fought the wildfire, and AltaGas hired aircraft to assist them. The following day, the BC Wildfire Service assumed command of the firefighting efforts.

The wildfire consumed 60 hectares of Crown land before it was declared out on August 9, 2016.
AltaGas incurred significant costs associated with fighting the fire, repairing damage to its hydro lines, and taking its hydroelectric facility off-line for four days. Following the wildfire, AltaGas updated its standard operating procedures, undertook staff training, and purchased an on-site fire weather station.

After giving AltaGas an opportunity to be heard, the Director determined that it had contravened section 21(2) of the Wildfire Regulation by allowing embers to escape from its open fire. He levied a penalty of $500 for the contravention, and ordered AltaGas to pay the government’s fire control costs of $345,347.77.

AltaGas appealed and requested that the order to pay the government’s fire suppression costs be set aside. Among other things, AltaGas submitted that the Director: failed to provide adequate written reasons in the order; fettered his discretion by treating the Wildfire Act and a Ministry policy as requiring him to order the payment of fire control costs unless the exceptions in section 29 of the Wildfire Regulation were met; and, treated the legislation and/or the policy as providing no discretion to order the payment of less than the full amount of the government’s fire control costs.

The Commission found that it was unnecessary to determine whether the reasons in the order were adequate, because any such inadequacy was cured by the appeal process. The Commission had conducted a new hearing of the matter, and gave detailed written reasons for its decision.
Next, the Commission found that section 27(1)(d) of the Wildfire Act provided the Director with the discretion to decide whether a person who caused a wildfire through a contravention should pay the government’s fire control costs, unless the person qualified for one of the exceptions in section 29 of the Wildfire Regulation. However, section 27(1)(d) provided no discretion to order the payment of less than the full amount of those costs.

After considering the circumstances in this case, the Commission concluded that the nature of the contravention leading to a wildfire, as well as its scope and intensity, warranted ordering AltaGas to pay the government’s fire suppression costs. Neither AltaGas’ own costs incurred due to the wildfire, nor its post-fire conduct, justified relieving it from having to pay the government’s fire control costs.

Accordingly, the Commission confirmed the Director’s order and dismissed the appeal.