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FORESTRY AND TIMBER - Logging grounds - Crown lands

Wednesday, May 09, 2018 @ 8:44 AM  


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Appeal by BC from the dismissal of its action against Canfor and Barlow. Canfor cross-appealed from the dismissal of its counterclaim. Canfor and Barlow cross-appealed from the costs awarded. The action arose from a June 2010 forest fire first discovered in and next to a logging cutblock being harvested by Canfor’s subcontractor, Barlow. The fire burned out of control for several weeks, despite best efforts by firefighters, ultimately burning 6,100 hectares of Crown land. BC sued Canfor and Barlow in negligence, and Canfor for breach of contract and breach of the Wildfire Act. Canfor and Barlow acknowledged that they breached safety regulations by failing to maintain a fire watch for one hour following completion of work. They took the position that BC failed to prove that a fire watch would have made any difference to BC’s ability to detect and supress the fire. The judge concluded that the fire was caused by lightning and not the operation of logging equipment, such that BC failed to prove that the absence of a fire watch caused or contributed to its losses from the fire. The judge also rejected Canfor’s argument that BC was negligent in attempting to suppress and extinguish the fire. The judge relied on evidence from Barlow about the time that operations ceased for the day, varying expert opinions about how long it would have taken in the hot, dry conditions of the time period for a lightning strike the day before to have resulted in flaming combustion, and evidence from BC about when smoke from the fire was spotted. He was unable to conclude that the fire reached the stage of flaming ignition within one hour of Barlow ceasing operations. He noted that, even if the fire had ignited during that hour, it might not have been detected by a fire watch. The judge found no direct or indirect causal link between BC’s loss and any act or omission on Canfor’s part. He found that BC satisfied the requisite standard of care in responding to the fire.

HELD: Appeal by BC allowed in part. BC’s claims in negligence and breach of contract on the indemnity clause were remitted for a new trial. Canfor’s appeal from the dismissal of its counterclaim was dismissed. Costs were linked to BC’s success on the appeal and as such, needed to be revisited. The judge erred in interpreting the regulatory requirements for conducting a fire watch as limiting the requisite duration for a fire watch to one hour after high risk activity ended, as opposed to one hour after work ended, generally. As such, the judge failed to address the issue of whether Canfor and Barlow’s breach of the standard of care by failing to conduct a fire watch until 5:00 caused BC’s loss. Similarly, the judge’s finding on causation had to be revisited based on Canfor and Barlow’s obligation to conduct a fire watch until 5:00. There was no basis to interfere with the judge’s finding that BC’s response to the fire, once discovered, was adequate.

British Columbia v. Canadian Forest Products Ltd., [2018] B.C.J. No. 601, British Columbia Court of Appeal, D.M. Smith, N.J. Garson and L. Fenlon JJ.A., April 6, 2018. Digest No. TLD-May72018006