CN loses appeal of $16M penalty for causing destructive B.C. wildfire

The Cisco Road wildfire, discovered on June 11, 2015, burns outside Lytton, B.C. (Wildfire Management Branch)

The Canadian National Railway must pay the B.C. government $16.2 million for causing a destructive 2015 wildfire in the Fraser Canyon, the province's highest court has ruled.

B.C.'s fire manager determined the approximately 2,400-hectare blaze was sparked as a result of illegal rail cutting near Lytton – the community that would be devastated by another wildfire six years later – and ordered CN Rail to reimburse the province for lost land value, firefighting costs and other expenses in 2018.

The company accepted responsibility for accidentally igniting the flames during a period of high winds and extreme fire danger, but challenged the amount of the penalty, accusing the B.C. Wildfire Service of exacerbating the situation with a controlled burn that led to additional spread.

CN Rail's arguments were first rejected by the province's Forest Appeals Commission in 2020, then the B.C. Supreme Court in 2022, then the B.C. Court of Appeal last week.

"This dispute has been outstanding for almost nine years, and decisions have been rendered by three different decision-makers," Justice Janet Winteringham wrote in an Aug. 28 ruling, on behalf of the appeal court's three-judge panel.

"The commission reviewed the evidence tendered in considerable detail and explained why it made particular findings … The chambers judge, correctly, gave deference to the commission."

CN Rail's case focused on a June 17 controlled burn that lasted for weeks, scorching hundreds of hectares of land.

The company argued such an operation was unnecessary – and did not meet the definition of "fire control" under the province's Wildfire Act, which allows the government to claw back costs of "fire control" for wildfires caused by illegal activity.

CN relied on expert witness Gregory Guyan of California, who had never visited the Lytton area before giving his opinion, but suggested the controlled burn needlessly increased the size of the fire by one-third.

The operation was intended to prevent the fire from spreading further southward – something Guyan argued could have been accomplished by targeted suppression efforts on the southern flank instead.

The commission weighed his opinion against those of four people involved in the firefighting effort, including James Richardson, B.C.’s wildfire preparedness officer, who told the Forest Appeals Commission the burn “went perfectly,” and achieved the desired objective.

He noted the prevailing winds in the area shift over the summer months, and begin blowing from the north – which would have fanned the flames quickly, particularly given the hot and dry conditions.

Winteringham also pointed to testimony from Tim Ewart, a certified incident commander with the BCWS since 1996, who called Guyan's alternative suggestion for a direct attack unrealistic, given the challenging topography around the flames and the fire's extreme behaviour at the time.

The justice accepted CN’s position that the Forest Appeals Commission can assess "particular fire suppression strategies" when deciding whether the government is entitled to recover costs – but found it had done so while rejecting Guyan's opinion.

"The province’s witnesses explained why the ignition operation was necessary to control the fire. The commission accepted their explanation," the judge wrote.

"These witnesses were well-versed in forest fires in this complex terrain. Based on the evidence, the commission determined that the cost of the ignition operation and the resulting damage to resources was directly or indirectly caused by CN’s contravention."