Third Parties: 391605 BC Ltd. and D.N.T. Contracting Ltd.
APPEAL NO. 2017-WFA-005(a) and 2017-WFA-006(a)

This appeal was initiated by the Board to clarify the availability of the “mistake of fact” defence under the Wildfire Act. Regulations limit when high risk activity may occur according to the Fire Danger Class in an area, which is determined by conditions recorded at a representative weather station. If the Fire Danger Class is “extreme” there must be a complete cessation of high risk activities. Use of an unrepresentative weather station resulted in operations continuing during extreme danger class conditions, and a feller buncher caused a wildfire. The Board argued that reasonable care must be exercised in the selection of a representative weather station, that it was not in this case, and therefore the mistake of fact defence is not available. The FAC agreed, and found that the timber sale licence (TSL) holder could not avail itself of the mistake of fact defence because Canfor, which provided the information, had not exercised reasonable care and was acting ‘in the shoes’ of the TSL holder. The FAC found that the contractor had taken reasonable care to know the relevant facts in the circumstances.

Appeal allowed in respect of 391605 BC Ltd., and dismissed in respect of D.N.T. Contracting Ltd.

FAC Decision: http://www.fac.gov.bc.ca/wildfireAct/2017wfa005a_006a.pdf