B.C. man ordered to pay cost of fighting wildfire sparked by his open burning

An appeal panel has confirmed the more-than-$100,000 penalty levied against a B.C. man found to have caused a wildfire in 2019.

Eldon Whalen reported the blaze to the B.C. Wildfire Service on May 10 of that year, according to a decision by the B.C. Forest Appeals Commission posted online this week. 

The fire burned a total of 11.5 hectares, most of it privately owned land, in the Kispiox Valley in northwestern B.C.'s Skeena-Stikine Region.

Wildfire crews classified the blaze as "under control" on May 16, 2019, and it was extinguished by June 17 of that year.

According to the commission's decision, the undisputed cause of the wildfire was a Category 2 open burn pile that Whalen lit on March 31, 2019.

Having determined that Whalen was responsible for the fire, the BCWS – acting on behalf of the forests minister – ordered him to pay a $3,000 administrative penalty, plus $100,688.12 to cover firefighting costs.

Whalen appealed the order to the Forest Appeals Commission, asking it to rescind the penalties and the finding that he was responsible for the blaze.

NO LEGAL DIFFERENCE BETWEEN 'BURNING FIRE' AND 'EMBERS'

The crux of Whalen's argument, as summarized in the commission's decision, was that he had fulfilled all his duties under the Wildfire Act, and therefore shouldn't be blamed for the wildfire, even though it was caused by the remnants of his open burning.

Specifically, Whalen sought to draw a distinction between the concept of a "burning fire" and "embers."

"The appellant submits 'after March 31, when the burn pile was lit, it is believed that embers travelled underground, through water-soaked ground through some fuels before reaching the forest,'" the decision by Forest Appeals Commission panel chair Cynthia Yu reads, quoting from Whalen's submission.

"A 'burning fire' cannot be treated the same as the embers," the quote continues. "A 'burning fire' suggests flames, crackling of wood, and something that is clearly alive or active. A 'burning fire', the appellant submits, does not include embers surreptitiously travelling underground without emitting any palpable signs that it is active. There is a recognizable difference between a 'burning fire' and embers."

Whalen told the panel that he remained at the scene of the open burn throughout the day on March 31 and he returned regularly to monitor it with a bucket of water and tools in the days and weeks after that.

Thus, he argued, he fulfilled his obligations to ensure that the fire was monitored, a fuel break was maintained, and the fire was extinguished before he left the burn area. As far as he could tell from observing the fire, he argued, it was extinguished.

Yu was unpersuaded by this line of reasoning, however, noting in her decision that the Wildfire Act does not use the terms "burning fire" or "embers."

"No evidence was presented to me that suggests 'fire' should be interpreted as the Appellant has suggested on the facts of this case," the panel chair wrote.

"The appellant does not submit any evidence, expert or otherwise, to support the assertion that a burning fire requires visible flames or smoke. Similarly, the appellant does not submit any evidence to support the assertion that fires are only above-ground events and that a person who lights a fire in accordance with the regulation is only responsible for fires which are visible or detectable by smoke or flame above or on the surface of the ground."

NO DEFENCES AVAILABLE

According to the decision, those accused of causing a wildfire under the Wildfire Act have three possible defences available to them.

They can argue that they exercised due diligence to prevent the contravention of the act; they can argue they made a "mistake of fact" that, if it had been true, would have meant they weren't in contravention; and they can argue that the contravention was the result of "an officially induced error."

Whalen argued that he had exercised due diligence and made a mistake of fact, but Yu disagreed on both assertions.

"The appellant did not know the fire was not extinguished and did not know that fires could 'creep,' burn underground, or be burning without visible or olfactible smoke," the panel chair wrote, addressing the "mistake of fact" argument.

"However, the question that I must answer is if it was reasonable for the appellant to know these things."

Yu noted that the term "holdover fire" is defined in the provincial government's publicly available Wildfire Glossary, and concluded that Whalen had provided no evidence to establish that it was reasonable for him not to know about the possibility that his burn pile could cause a wildfire even though it was no longer showing visible smoke.

Similarly, Yu found that Whalen could not claim to have done the necessary due diligence, given his self-professed lack of knowledge about open burning and the fact that he had not contacted the local fire department, the Ministry of Forests or the BCWS before lighting the fire.

"The Appellant acknowledges his lack of knowledge regarding open burning best practices and regulations," the panel chair wrote. "I believe it is reasonable to expect someone who acknowledges the potential risk associated with open burning and also identifies that they possess insufficient knowledge in the area to take reasonable steps to address that knowledge gap."

Yu confirmed the orders – deeming a $3,000 administrative penalty to be a reasonable punishment in light of the large firefighting bill – and dismissed Whalen's appeal.