Earlier this year, in the case of Canadian Forest Products Ltd. v Government of British Columbia, 2024 BCFAC 4, the Canadian Forest Appeals Commission (the “Commission”) considered an appeal from Canfor with respect of an order issued by the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry of Forests”) ordering them to pay over 1 million dollars in costs recovery for failing to ensure a burn pile fire they lit was properly controlled.1
As a part of their harvesting timber activities, Canfor obtained a permit to burn “woody debris” in the fall of 2017. The authorized burning was conducted without incident in the fall of 2017. In the spring of 2018, Canfor retained a third party to conduct thermal imaging of the authorized burning locations, revealing excess heat at one location, indicating a holdover fire might exist at that location. Some 9 days later, Canfor attended the location and, by their account extinguished, the holdover fire. Three days later, a fire was reported in that same location and quickly grew to 7-8 hectares in size. The Ministry of Forests found Canfor liable for this fire, and ordered Canfor to pay for the costs of the fire.
Canfor appealed the costs recovery order to the Commission on the grounds that it could not be reasonably concluded it caused the fire; and, even if it did, it conducted its activities with all due diligence. On appeal, the Commission found that Canfor caused the fire, but had to also consider whether Canfor had a due diligence defence that would justify the Commission quashing the cost recovery order.
The relevant standard for assessing if proper due diligence was exercised is: “[w]hether a person takes all reasonable steps to avoid a particular event”, in this case the forest fire, which required the Commission to assess Canfor’s conduct through the following two-limbed test:
- The reasonableness of the organization’s policies and procedures for the prevention of forest fires; and
- The adherence to said policies and procedures.2
Canfor had an internal document, which laid out its policies and procedure for dealing with controlled burns, which including the following principles for the prevention of forest fires:
- have a burn strategy;
- test burn a small unburned piled;
- track what piles were lit by whom, and when they were monitored/assessed;
- assign monitors to specific burn piles;
- fill out and constantly update the relevant hazmat abatement spreadsheet and correlating map; and
- Inspect and monitor all piles at regular intervals (the “Burn Pile Policy”).
Canfor retained an expert who was a registered professional forester and biologist, who was qualified by the court to provide expert evidence on forest fire hazard assessment and pile burning practices, procedures and associated regulations, forest fire risk assessment and fire management. This expert opined that the Burn Pile Policy was reasonable and consistent with the prevailing practices at the time. However, this expert did not review nor was provided any evidence that Canfor actually adhered to the Burn Pile Policy. At the appeal hearing, the expert admitted he was unaware of how the burn of various piles were carried out, and when and where they were determined to be extinguished. He could not say if the required inspections allegedly conducted by Canfor from the start of the process to the end, including the critically important monitoring and inspection of the burned piles, were actually carried out.
In reviewing the evidence, the Commission found that there was missing information in Canfor’s documentation, which suggested not all steps were taken under the Burn Pile Policy, and, as Canfor’s expert did not examine the evidence directly, the Commission could not rely on the expert’s opinion that Canfor had taken all reasonable steps to avoid the spread of fire. In reaching this decision, the Commission held that:
[E]ven if a system of policies and procedures might be sufficient to establish what reasonable and diligent steps to respond to a fire would be, the failure to follow that system means the threshold of due diligence may not be met. In the present circumstances, the Panel therefore finds that Canfor has not demonstrated that it took all reasonable steps to ensure “effective operation and compliance” with [the Burn Pile Policy], and has further failed to establish the defence of due diligence in respect of its pile burning.3
In addition to the Burn Pile Policy, the Commission also undertook a review Canfor’s policy and procedures for “hot landings”, that is, other locales that suggest risk of holdover fires (the “Hot Landing Policy”). While the decision does not provide the details of the Canfor’s Hot Landing Policy, the evidence suggested that thorough site investigations were neither prescribed nor undertaken by Canfor. The Commission found that the Hot Landing Policy was lacking, which further evidence that Canfor did not take all reasonable steps to avoid the spread of fire:
We turn next to Canfor’s policy and procedures relating to hot landings. First, in terms of the content of the policy, we agree with the [Forest Practices Board] that Canfor’s policy and procedures in responding to hot landings is lacking and does not meet the due diligence standard. For example, an effective policy should provide direction on examining the area involved with the hot spot and the work completed from all sides, as well as on documenting the work done at the site so that others would be aware of the situation in the event a holdover fire should arise. These are both things that [Canfor’s Expert] testified would be good practice.4
In the result, the Commission quashed Canfor’s appeal and upheld the cost recovery orders.
In conclusion, for those seeking to establish a defence of due diligence in the face of an allegation that they were responsible for the spread of a forest fire, they should insure that their expert addresses both limbs of the due diligence test: (1) were there reasonable policies and procedures in place to prevent the spread of forest fire; and (2) were these policies and procedures duly followed. The second limb of the test requires their expert to investigate whether the steps actually took place, and providing evidence of those steps. It is not enough to merely state that the proposed steps are reasonable on their face to prevent the spread of a forest fire.
[1] The cost recovery order was made up of an administrative penalty of $5,000, fire control costs of $1,028,694.74, and $1,761 for the damage or destruction of 7,044m3 of Crown Timber.
Canadian Forest Products Ltd. v Government of British Columbia, 2024 BCFAC 4, at 3.
[2] Canadian Forest Products Ltd. v Government of British Columbia, 2024 BCFAC 4, at 68.
[3] Canadian Forest Products Ltd. v Government of British Columbia, 2024 BCFAC 4, at 174.
[4] Canadian Forest Products Ltd. v Government of British Columbia, 2024 BCFAC 4, at 174.