The Province does not need to prove fire control efforts were necessary or effective to recover such costs under the Wildfire Act

Administrative law – Decisions reviewed – Forest Appeals Commission – Judicial review – Legislative compliance – Costs – Environmental matters – Forest practices

Canadian National Railway Co. v. British Columbia, [2022] B.C.J. No. 2510, 2022 BCSC 2263, British Columbia Supreme Court, December 28, 2022, N. Sharma J.

On June 11, 2015, a wildfire was sparked south of Lytton, British Columbia while CNR was cutting rails.  The BC Wildfire Service responded, and attended the fire until September 3, 2015.  During that time, the BC Wildfire Service employed a controlled burn that achieved fire control objectives, but enlarged the burn area.

CNR did not dispute that the fire was caused by sparks from rail cutting activities that were carried out in contravention of the Wildfire Act, S.B.C. 2005, c. 31.  The manager of the Prince George Fire Centre convened a hearing to determine the costs and penalties payable because of the contravention.  Pursuant to the Act, s. 27(1), the manager ordered CNR to pay: a $75,000 administrative penalty, $7,073,317.97 for the cost of the Province’s fire control response, $8,971,289.75 for the value of forest land resources damaged or destroyed by the fire, and $169,065.31 for the cost of reforestation or silviculture.

CNR appealed to the Forest Appeals Commission, challenging the amount of the cost recovery awards for fire control costs and damage to Crown resources.  CNR argued that the Commission ought to consider whether any of the fire control response costs and damage was caused by the controlled burn rather than the initial fire.  CNR’s position was that the Province cannot recover costs nor compensation for damage to forest land caused by the controlled burn.  The Commission did not reduce the awards.

CNR sought judicial review, raising two main issues.  The first was what is the correct legal test for determining which costs of fire control and which damages to forest lands are recoverable under the Act.  The second was whether the Commission had made an error of mixed fact and law by relying on estimates or average costs to determine or ascertain what the Province paid for payroll loading costs in respect of the fire.

CNR’s position was that s. 27 required a causation analysis.  CNR argued that the proper interpretation of the legislation was no amount can be payable for costs or damages resulting from a fire caused by anything other than a contravention.  CNR argued the controlled burn was an intervening event, and that any costs or damage from that were not directly or indirectly linked to CNR’s contravention.  CNR’s restrictive approach to causation would require the Province to show that every fire control action taken was necessary and effective.

The Court rejected this interpretation, holding that it was contrary to the language of the Act, the scheme of the Act, and the intention of the Legislature.  Nothing in the statutory wording required the Province to prove the fire control costs were necessary and effective.  This wording differed from other legislation where a higher or more stringent threshold was prescribed.  Further, the purpose of the legislative scheme is to prioritize safety, infrastructure, and the environment over minimizing potential costs to a person who started a wildfire.  The legislative intention was to create an efficient mechanism for the resolution of this type of claim, and to avoid having the Province pursue claims through the courts.

The Court held that the costs of the controlled burn and associated damages were an indirect result of CNR’s contravention and were recoverable under the Act, s. 27.

Finally, the Court held that the Commission did not err in relying on estimates of payroll loading costs when calculating the fire control costs, because the Province is unable to determine the actual payroll loading cost for any specific employee.  If actual out-of-pocket costs had to be determined, payroll loading costs would never be recoverable.  This would be an absurd result.

This case was digested by Emilie LeDuc, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Emilie LeDuc at eleduc@harpergrey.com.

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