The Canadian National Railway has lost an appeal that argued a judge erred in their interpretation of the Wildfire Act that required them to pay more than $16 million in penalties to the province after causing a wildfire.
The appeal was dismissed after B.C. Court of Appeal Judge Janet Winteringham said in her written decision, from Aug. 28, that the previous judge was correct when she declined to interfere with the Forest Appeal Commission's interpretation of the Wildfire Act back in 2018.
In June 2015, CN Rail caused a wildfire not far from Lytton. The fire burned until October and grew to approximately 2,396 hectares.
BC Wildfire Service did two planned ignitions to remove forest fuels on June 16 and 17, 2015. The second ignition resulted in a fire that burned for weeks.
Two weeks after the fire started, BC Wildfire Service considered the fire to be contained, but not extinguished. However, on July 31, 2015, it flared back up.
The province says the firefighting efforts were "successful," and that it prevented the fire from escaping and threatening communities and infrastructure along the Fraser Canyon.
In 2018, after a hearing the Prince George Fire Centre manager issued a contravention order, an administrative penalty and a cost recovery order that required CN Rail to pay more than $16 million in compensation to the province for its costs to suppress and extinguish the wildfire.
The company was ordered to pay $75,000 in the administrative penalty, $7.073 million for the costs of the fire control, $8.971 million for the value of forest land resources damaged or destroyed by the fire and $169,065 for reforestation costs.
CN Rail appealed the cost recovery order, but not the contravention order or the penalty. The company admitted to causing the fire through rail cutting activities and that it was responsible for some of firefighting costs and damaged resources.
But CN said that province's firefighting efforts "did not suppress, but rather exacerbated, the wildfire." CN wanted the costs reduced.
After a 12-day hearing, the Forest Appeal Commission dismissed the appeal.
CN filed a B.C. Supreme Court petition for judicial review and a statutory appeal. The petition and the appeal were heard together over three days and the judge dismissed both.
The rail company appealed the statutory appeal decision.
Wintergham said the dispute, now outstanding for almost nine years, "has weaved its way through various levels of appeal." She said CN's position has "evolved and issues have fallen away," and the appeal now focused on the correct interpretation of section 27 of the Wildfire Act.
She said that the previous judge was correct in upholding the commission's findings, adding that she was "correct when she declined to interfere with the commission's interpretation" of the section.
