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$100K wildfire fine on hold after B.C. man's successful appeal

A burn pile on Eldon Whalen's property became an 11.5-hectare wildfire in May 2019
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A B.C. man, Eldon Whalen, is now awaiting a new hearing after successfully appealing a previous decision that upheld a $100,000-fine for starting a wildfire in the Kispiox Valley, north of Smithers. (File photo)

A B.C. man is awaiting a new hearing after successfully appealing a $100,000-fine for starting a wildfire in the Kispiox Valley.

Supreme Court of B.C. Judge Michael Tammen allowed Eldon Whalen's appeal of the May 16, 2023 decision that upheld a B.C. government's fine for the costs of fire control. Whalen was fined under the Wildfire Act after a burn pile on his property became a wildfire in May 2019, according to a June 12 decision.

Whalen is appealing the contravention order that included a $3,000 administrative penalty and $100,688 for costs of recovery for failing to ensure a Category 2 open fire started by him did not spread. The penalty and contravention fine were initially ordered on May 2, 2022. 

Whalen, who owns property on Muldoon Road in the Kispiox Valley, lit a Category 2 open fire on March 31, 2019. He and his spouse planned to build a home on the property and he wanted to dispose of some clearing debris. 

The decision says that when the fire had burned down to the point "only charred logs remained," Whalen then "poured 25 gallons of water on the fire, and believed it was extinguished." He then left the site.

He has maintained that he returned to the burn site several times from April 1 to 8, 2019, "at all times believing it was extinguished." He also returned to the site after that, but less frequently.

On May 10, 2019, he discovered the fire had spread and become a wildfire. He saw smoke and flames in the area and immediately called 911. Firefighters were on the scene within an hour.

The wildfire ultimately covered 11.5 hectares, including 10.8 hectares of private land and 0.7 hectares of Crown land. B.C. Wildfire Service used ground crews, helicopters, air tankers and fire retardant to combat the fire. It was deemed under control on May 19, 2019 and extinguished on June 17, 2019.

B.C. Wildfire Service submitted a complaint to the government on May 10, 2019. The following day, the wildfire service determined the fire was caused by an open fire which wasn't extinguished, smouldered and escaped "due to fire creep and gusting winds weeks after initial ignition."

Those findings were included in a report submitted by a natural resource officer in 2021.

The orders were issued against Whalen on May 22, 2022, which he appealed. The Forest Appeals Commission upheld the orders on May 16, 2023.

Whalen appealed that decision on June 5, 2023, filing a petition for a judicial review on Nov. 20, 2023. The Forest Appeals Commission and the provincial government filed their responses to the petition on Dec. 12 and 27, 2023, respectively. 

In his initial appeal, Whalen argued the intent of the Wildfire Act is "to place liability on those who are unfamiliar with fire restrictions, irresponsible, and who act stupidly." Whalen said he doesn't fit that criteria. 

In his June 12 decision, Tammen said Whalen outlined the steps he took to attempt to extinguish the fire, "and importantly, what additional steps he took to learn if the fire truly was extinguished."

Tammen said Whalen was not required to prove he took all possible reasonable steps to be able to know when and if the fire was extinguished. He was only required to prove he took sufficient steps. 

"I am satisfied that there is a basis to believe that the (Forest Appeals) Commission failed to take into account the appellant’s evidence of what steps he took to confirm that the fire was extinguished."

Tammen said the remaining question is what order Whalen should be given, noting that Whalen said the judge should "substitute [his] view for that of the commission, and make the findings in his favour."

However, Tammen said there was evidence before the commission that a contravention to the Wildfire Act could be made. 

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Lauren Collins

About the Author: Lauren Collins

I'm a provincial reporter for Black Press Media's national team, after my journalism career took me across B.C. since I was 19 years old.
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