A B.C. Supreme Court Justice has ordered a new hearing for a man facing a penalty of more than $100,000 for allegedly letting a burn pile get out of control.
In a decision issued Wednesday, Justice Michael Tammen questioned a Forest Appeals Commission decision against Eldon Whalen in relation to a fire he had lit on March 31, 2019 to dispose of debris on a Kispiox Valley property where he and his wife had planned to build a home.
When the fire had burnt down to the point that only charred logs remained, Whalen poured 25 gallons of water on the fire, and believed it was extinguished, according to Tammen's summary of the incident.
Whalen then left the site but over the following eight days, he returned several times, and made further checks on the fire, "at all times believing it was extinguished."
Thereafter, Whalen continued to keep an eye on the site but on a less frequent basis. Then, on May 10, 2019, while driving by the property, Whalen saw smoke and flames in the area and immediately called 911.
Local firefighters arrived within the hour but by then, the fire had become a wildfire, and ultimately covered 11.5 hectares, made up of 10.8 hectares of private land and 0.7 hectares of Crown land.
The B.C. Wildfire Service was called in and ground crews, helicopters, air tankers and fire retardant was deployed. It was deemed under control six days later and about a month after that declared extinguished.
BCWS determined Whalen's open fire was the cause. It had smouldered and escaped due to fire creep and gusting winds, BCWS determined. Whalen was billed $100,688.12 for the cost to BCWS of dealing with the fire and fined a further $3,000.
Whalen did not dispute that his burn pile fire was the origin but maintained he had reasonable belief he had extinguished the fire in accordance with a "mistake of fact defence" available under the Wildfire Act. On that note, Tammen found the Commission had held Whalen to an "artificially high and legally incorrect" standard of due diligence.
As well, Tammen found the commission failed to consider evidence relevant to Whalen's position. Specifically, the judge questioned the commission's claim that Whalen failed to physically inspect and pull apart the burn pile to see if it was extinguished.
In an affidavit, Whalen said that as well as pouring the water on the pile, he had dug about two feet into the ashes and day later poured another five gallons of water onto the charred debris, which produced no steam. Whalen said he followed that by removing charred logs to see if there was anything he had missed.
"I did not see any smoke, embers or anything to indicate that the fire was active. The fire was dead. It was saturated with the standing water at the base of the burn pile. It showed no signs of being anything but extinguished," Whalen was quoted as saying in his affidavit.
Evidence provided in Whalen's affidavit was "either different or more complete than previous accounts he had given," notably in an interview he had given to an investigator, Tammen writes. But while it was open to the commissionto assess those differences, no such analysis appears in the commission's decision, the judge found.
"Rather, the tenor of the decision is that the commission accepted the appellant’s evidence and made several findings in reliance on it," Tammen said.
Whalen had hoped to have the decision overturned outright, but Tammen found the appropriate remedy was to take the matter back to the Commission but before a different member.
Kispiox Valley is about 460 kilometres west of Prince George,
