By Bethany Lindsay
A B.C. Supreme Court judge has largely upheld an order forcing Canadian National Railway to pay more than $16 million for causing a wildfire that burned for months near Lytton in 2015.
It cost the province millions of dollars to fight the flames ignited when sparks from CN’s rail-cutting activities set the surrounding grass ablaze during a spell of hot, dry and windy weather, according to reasons for judgment released Wednesday.
The wildfire started burning on June 11, 2015, and would eventually spread to cover 22 square kilometres before it was finally extinguished that October. Several people living on Lytton First Nation land were forced to evacuate, the community of Lytton was placed on evacuation alert and an empty building was destroyed.
In March 2020, the Forest Appeals Commission ordered CN to pay a total of $16.62 million in penalties, firefighting expenses, damage to natural resources and costs for reforestation.
B.C. Supreme Court Justice Neena Sharma’s decision this week keeps the vast majority of the details in that order in place. However, the overall cost to CN has been reduced slightly to $16.20 million after both the railway company and the province agreed the commission had wrongly reclassified some grassland as forest in its calculations of damaged land.
On the day the fire started, just south of Lytton, the fire danger in the area was rated as “extreme,” according to Sharma’s judgment.
But CN crew members had not checked that information or consulted weather data from the area before they started cutting rails, even though it’s considered a “high risk activity” under B.C.'s Wildfire Regulation.
The workers didn’t have an adequate fire suppression system or the 300-gallon water tank required by CN policy, the decision says.
Rail company questioned wildfire-fighting tactics
CN has never disputed that it broke B.C.'s wildfire laws and regulations, but the company has argued at both the appeals commission and in court that the assessments for firefighting costs and damage to Crown land are too high.
In particular, CN questioned the B.C. Wildfire Service’s strategy and tactics for fighting the fire — especially a controlled burn on June 17, 2015, that was meant to prevent the flames from spreading further south into the Fraser Valley.
The railway giant maintained that planned ignition increased the area burned by about six square kilometres, and it shouldn’t be held responsible for the damage.
But the judge rejected that logic, pointing out that the controlled burn wouldn’t have been necessary if CN hadn’t started a wildfire.
“There was no evidence that absent the fire started by [CN], the province had planned or intended to burn the ignition burn area for any reason that summer,” Sharma wrote.
“But for [CN]'s contravention, the fire would likely not have spread to the point that such drastic fire control measures were required.”
CN also disputed the province’s use of estimates rather than exact out-of-pocket expenses to calculate what it spent on payroll for firefighters and support staff. Sharma rejected those arguments too, writing that it would be virtually impossible to calculate payroll costs to meet the level of proof CN was suggesting.
The company argued as well that the area damaged or destroyed by the fire had been overestimated, but Sharma found the province’s expert witness gave the stronger evidence on this question, since he had actually surveyed the area in person and CN’s expert had not.
As a result of Sharma’s decision, CN will also have to pay the province’s legal costs for arguing its case in court and in front of the appeals commission.