A B.C. man whose open burning caused a wildfire in 2019 and led to more than $100,000 in firefighting costs has won his appeal before the B.C. Supreme Court.
The BC Wildfire Service – acting on behalf of the forests minister – ordered Eldon Whalen to pay a $3,000 administrative penalty, plus $100,688.12 to cover firefighting costs, after finding him responsible for causing the fire he reported to the service on May 10, 2019.
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.
Whalen appealed the wildfire service’s order to the Forest Appeals Commission, which upheld the penalty in a decision issued last June.
On Wednesday, however, B.C. Supreme Court Justice Michael Tammen found that the commission had made errors in its application of the law, and ordered it to reconsider the case.
‘Mistake of fact’ defence
In his appeal submissions, Whalen argued that the commission had made several different errors of law.
While Tammen rejected the assertion that two of the errors had been made, he agreed with Whalen on a third: that the commission had applied the incorrect legal test for the defence of “mistake of fact.”
Under the Wildfire Act, when a person is accused of causing a wildfire, one of the defences available to them is to argue that they made a mistake of fact. That is, they genuinely believed in a set of circumstances that, if true, would have meant they were not in breach of the act.
Whalen made such an argument to the commission, asserting that he had revisited the site of the Category 2 open burn that ultimately caused the wildfire multiple times after putting it out, and genuinely believed it had been extinguished.
The commission ruled that Whalen had not succeeded in a mistake of fact defence because he had not proven that it would have been unreasonable for him to know that the fire was not out.
Tammen’s decision indicates that the commission “appears to have accepted the sincerity” of Whalen’s professed belief. The commission erred, however, by interpreting the mistake of fact defence as requiring an additional layer of evidence that was not actually necessary.
“The commission fell into error by finding that there was a ‘second, significantly higher hurdle’ which the appellant needed to clear before succeeding in this defence,” Tammen’s decision reads.
“The commission compounded this error by framing the issue in a manner that required the appellant to show ‘that it was not reasonable to have known the true facts.'”
All that was required for Whalen to succeed in his mistake of fact defence, Tammen explained, was for him to state the reasons for his belief that the fire was extinguished and the thought process he followed to reach that conclusion.
With this information, it was up to the commission to determine whether a reasonable person, in Whalen’s shoes, would have reached the same conclusion.
“In the course of that analysis, it was, of course, open to the commission to consider if the steps the appellant took to assess whether the fire was extinguished were adequate, i.e., reasonable,” the decision reads.
“However, it was not open to the commission to have considered all the steps the appellant could have, and in the commission’s view, should have taken, prior to lighting the fire in the consideration of mistake of fact. Such matters might well have been relevant to the defence of due diligence, but had no application to the appellant’s defence that he honestly believed the fire was extinguished, and therefore there was no risk of it escaping.”
Failure to consider evidence
Tammen also accepted Whalen’s argument that the commission had failed to consider relevant evidence about the extent to which he took steps to conclude that the fire had been extinguished.
While the commission’s decision indicated that Whalen had not submitted any evidence to show that the fire had been physically inspected and pulled apart after water was poured on it, Tammen found clear references to such efforts in an affidavit Whalen submitted to the commission.
“In my view, the passages I have quoted from the appellant’s affidavit constituted potentially important evidence on the issue of mistake of fact,” Tammen’s decision reads.
“Those passages certainly contained some evidence of the appellant pulling apart and inspecting the burn pile, and the extent to which he dug into the pile with a shovel. In finding that there was no evidence on those two points, the commission clearly failed to consider relevant evidence.”
The judge further concluded that these two errors by the commission – applying the wrong test for mistake of fact and failing to consider relevant evidence – had affected the result of Whalen’s case.
“The combined effect of these errors deprived the appellant of one of the two defences he advanced as excusing him from liability,” the decision reads. “It cannot be said that, had the commission considered the relevant evidence on mistake of fact, and applied the correct legal test, the result would inevitably have been the same. Thus, the errors, certainly the combined errors, were not harmless.”
For these reasons, Tammen allowed Whalen’s appeal. He stopped short of substituting his own decision for the commission’s, however, opting instead to remit the case to the commission for a new hearing before a different arbitrator.
