Forest Appeals Commission

Forest Appeals Commission Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: www.fac.gov.bc.ca E-mail: facinfo@gov.bc.ca DECISION NO. 2012-WFA-002(a) In the matter of an appeal under under section 39 of the Wildfire Act, S.B.C. 2004, c. 31. BETWEEN: Robert Unger APPLICANT AND: Government of British Columbia RESPONDENT AND: Forest Practices Board THIRD PARTY BEFORE: DATE: A Panel of the Forest Appeals Commission Alan Andison, Chair Conducted by way of written submissions concluding on April 16, 2013 APPEARING: For the Appellant: Shawna R. Skinner and Neil R. MacLean, Counsel For the Respondent: A.K. Fraser, Counsel APPLICATION FOR DOCUMENT DISCLOSURE [1] On April 9, 2013, Robert Unger applied to the Commission for an order requiring the Government to produce certain documents. Mr. Unger seeks production of the documents before the hearing of his appeal against a review decision that confirmed a determination and cost recovery order issued against him under the Wildfire Act. The hearing of his appeal is scheduled to commence on June 25, 2013. [2] The Commission received written submissions from Mr. Unger and the Government on the application for document disclosure. [3] The Commission has the authority to issue an interim order for the disclosure of documentation and the power to issue a summons under sections 133 and 135 of the Forest Practices Code of British Columbia Act (the Code ). Under section 39(2) of the Wildfire Act, sections 131 to 141 of the Code apply to appeals under the Wildfire Act. BACKGROUND [4] On May 24, 2011, Darrell Orosz, Fire Centre Manager, Cariboo Fire Centre, Ministry of Forests, Land and Natural Resource Operations (the Ministry ), issued a determination that Mr. Unger had contravened section 5(1) of the Wildfire Act and

DECISION NO. 2012-WFA-002(a) Page 2 section 20(2) of the Wildfire Regulation, by lighting a campfire and allowing it to escape. According to the determination letter, Mr. Unger lit a campfire on land he owned, when it was unsafe to do so, and he failed to establish a fuel break around the fire. The fire escaped and caused a wildfire, and the Ministry responded to the wildfire. Mr. Unger s land was not within the jurisdiction of a fire department. [5] Also in the determination letter, the Fire Centre Manager decided not to levy a penalty against Mr. Unger, or order him to compensate the government for damage to public property under section 27 of the Wildfire Act. However, he issued a cost recovery order under section 25(2) of the Wildfire Act that requires Mr. Unger to pay $861,356.09 for the Government s costs to control the wildfire that resulted from the contraventions. In relation to the section 25(2) cost recovery order, the Fire Centre Manager stated, in part, as follows: In exercising my discretion under section 25(2), I must look at the particular circumstances of this case and any relevant Ministry policy. The Ministry has a policy in place that speaks to cost recovery for wildfires. Policy 9.1 is titled Wildfire Control Responsibilities & Costs. Page 3 of Policy 9.1 states that: The government s costs associated with wildfire control in support of a fire department are covered under operating guidelines, and will not be passed on to the private land owner unless a wilful act or omission caused or contributed to the spread of the fire. In this case, the government s fire control costs were not in support of a fire department. Policy 9.1 further states at page 3 that Government s fire control costs for a fire that results from a campfire on private land or leased crown land may be passed on to the owner or lease holder. Policy is not law, and following it is not mandatory if there are sound reasons to depart from it. Policy is non-binding Ministry guidance which is intended to guide my discretion, but from which I am entitled to depart depending on the particular circumstances and considerations of the case. In this case, the policy simply reiterates the discretion granted to me under section 25(2) and 27(1)(d) of the Wildfire Act. Looking at the particular circumstances of this case, I am not aware of any considerations or factors that would lead me to refrain from making an order under section 25(2). I have considered ability to pay but conclude that the Legislature could not have intended ability to pay to be a valid consideration, since in many cases, and certainly in the most serious cases, the government s fire control costs will be beyond the ability of most persons to pay, in the absence of adequate insurance coverage. Accordingly, if a person s ability to pay were a valid consideration in exercising one s discretion under these sections, the cost recovery sections of the Wildfire Act would have very little utility in actually recovering government s fire control costs. Having regard to the facts of this case, I have decided that it is appropriate to require you to pay $861,356.06 for the government s fire control costs and order you to do so. [underlining in original]

DECISION NO. 2012-WFA-002(a) Page 3 [6] On May 28, 2012, the same Fire Centre Manager issued the review decision. In that decision, after considering new evidence in the form of four other determinations, the Fire Centre Manager confirmed the determination and the cost recovery order. Under the heading Reasons for Decision, the Fire Centre Manager states, in part, as follows: I have reviewed the four determinations that you provided for me to review Section 29 of the Wildfire Regulation sets out the circumstances in which a DDM [delegated decision-maker] may not require a person to pay the government for the government s fire control costs The only part of section 29 that applies to your situation is that you did not wilfully cause or contribute to the start or spread of the fire. That alone does not bring you within the ambit of section 29, and I therefore have discretion about whether or not to order the payment of fire control costs against you. My discretion is guided, in part, by Policy 9.1. In my determination, I noted that Policy 9.1 states the following on page 3: The government s costs associated with wildfire control in support of a fire department are covered under operating guidelines, and will not be passed on to the private land owner unless a wilful act or omission caused or contributed to the spread of the fire I observed that in your case, the government s fire control costs were not in support of a fire department, as [Mr. Unger s land] does not fall within the jurisdiction of a fire department. Page 5 of Policy 9.1 contains the following: Private land: Owners and/or occupants of private land will be billed for fire suppression costs for fires they cause on their land. Exceptions to this will be based on Cost Sharing Agreement, Service Agreement, or the Insurance Premium Tax (proof of fire insurance for the threatened property may be required). However, if they have caused or contributed to the fire by a wilful act or omission, they will be billed for fire control costs. Page 3 of Policy 9.1 says the following, in part, about the Insurance Premium Tax: Insurance Premium Tax: A portion of the Insurance Premium Tax paid to government under the Insurance Premium Tax Act for certain types of insurance are used to provide coverage for the government s fire control costs for a wildfire: (b) on residential or recreational private land outside or inside a fire department protection area that has proof of valid fire insurance for the parcel of land, house, or improvement specified on the insurance policy,

DECISION NO. 2012-WFA-002(a) Page 4 The Insurance Premium Tax does not cover the government s fire control costs on private land outside of local government boundaries or jurisdiction unless there is proof of valid fire insurance coverage for the cost of fire control activities to protect forest lands or grass lands or there is a Cost Sharing Agreement or Service Agreement in place. I interpret this to mean that where a fire occurs outside local government boundaries, as in this case, there must be proof of valid fire insurance coverage for the cost of the fire control activities to protect forest lands or grass lands, or a Cost Sharing Agreement or Service Agreement. I have not been provided with proof of valid fire insurance coverage for the cost of the fire control activities to protect forest lands or grass lands, or with a Cost Sharing Agreement or Service Agreement. Accordingly, the exceptions in Policy 9.1 to the guidance that owners of private land should be billed for fire suppression costs for fires they cause on their land, do not apply. Furthermore, interim guidelines circulated in Wildfire Management Branch at the time of my determination indicated that the exception related to the Insurance Premium Tax should no longer be applied. Therefore, even if there were proof of valid fire insurance coverage for the cost of fire control activities to protect forest lands or grass lands, Branch guidance was that that should not override the general guidance that owners of private land should be billed for fire suppression costs for fires they cause on their lands. You submitted that I should not have taken insurance coverage into account as a factor in my determination in the context of ability to pay. You also confirmed that ability to pay is a relevant factor, but not the availability of insurance proceeds to compensate the insured. In my determination, I stated: Looking at the particular circumstances of this case, I am not aware of any considerations or factors that would lead me to refrain from making an order under section 25(2). I have considered ability to pay but conclude that the Legislature could not have intended ability to pay to be a valid consideration, since in many cases, and certainly in the most serious cases, the government s fire control costs will be beyond the ability of most persons to pay, in the absence of adequate insurance coverage. Accordingly, if a person s ability to pay were a valid consideration in exercising one s discretion under these sections, the cost recovery sections of the Wildfire Act would have very little utility in actually recovering government s fire control costs. What I intended to impart in this paragraph was that I had considered whether or not ability to pay should be a valid consideration in making my determination and [I] determined that it is not. I did not take insurance coverage into account as a factor in the context of ability to pay. Rather, I determined that ability to pay was not, itself, a factor that I should consider. Section 25(2) permits me to require a person to pay the amounts determined under subsection (1)(a), which are the government s fire control

DECISION NO. 2012-WFA-002(a) Page 5 costs calculated in the prescribed manner ; it does not permit me to require a person to pay only a portion of those costs. I interpret my authority in section 25(2) to order costs to be all costs or none of the costs. [underlining in original] [7] On June 19, 2012, Mr. Unger appealed the review decision on numerous grounds. The Commission has summarized those grounds as follows: The Ministry abandoned the policy in Chapter 9.1 of the Ministry Policy Manual, Volume 1, effective July 11, 2008, relating to private landowners and valid fire insurance policies, and as a result, delegated decision-makers had no discretion with respect to awarding fire control costs orders under sections 25 or 27 of the Wildfire Act for persons in Mr. Unger s circumstances. This action by the Ministry fettered the discretion of the Fire Centre Manager, and resulted in the determination against Mr. Unger. The Ministry s decision to arbitrarily abandon the policy also represents bias and constitutes a breach of natural justice. The Fire Centre Manager erred in interpreting the Ministry policy change to find that there was no discretion under section 25 of the Wildfire Act as to the amount of the fire control costs order against Mr. Unger. The Fire Centre Manager also erred in interpreting section 25 of the Wildfire Act as granting him no discretion to make an order for less than the full amount of the Government s fire control costs. This interpretation of the Ministry Policy and the Wildfire Act is incorrect and resulted in an excessive award against Mr. Unger. The Fire Centre Manager failed to consider the definition of Insurance Premium Tax policy in the 2008 Ministry Policy Manual, and erred in interpreting Chapter 9.1 of that Policy by applying the private forest land portion of that definition to Mr. Unger s circumstances. The Fire Centre Manager erred by failing to indicate which factors, if any, contributed to the decision to order Mr. Unger to pay the full amount of the Government s fire control costs. The Fire Centre Manager exercised his discretion unreasonably and unfairly in awarding the fire control costs order under section 25. [8] By a letter dated February 20, 2013, Mr. Unger s counsel advised the Commission that he had requested some documents from the Government, and he had received some of those documents, but discussions were ongoing with respect to certain documents. [9] In his April 9, 2013, document disclosure application to the Commission, Mr. Unger requested four categories of documents from the Government for the purposes of the appeal hearing: 1.) Internal government documents regarding the creation of sections 25 and 27 of the Wildfire Act; 2.) Internal government documents regarding the creation of sections 28 to 34 (in particular section 29) of the Wildfire Regulation;

DECISION NO. 2012-WFA-002(a) Page 6 3.) Any other internal memoranda, including emails, regarding the appropriate interpretation of sections 25 and 27 of the Wildfire Act and sections 28 to 34 of the Wildfire Regulation (beyond the information previously provided, dated May 16, 2011); and 4.) Any other internal memoranda, including emails, leading to the establishment of the insurance premium tax as a factor in determining liability under the Wildfire Act and Wildfire Regulation. [10] On April 16, 2013, Mr. Unger provided clarification to the Commission with respect to categories 3 and 4 above. With respect to category 3, he stated: To clarify, we are seeking internal memoranda that would have been available to any designated decision makers in making determinations with respect to fire control costs. This includes any information notes or other similar documents that were made available to and/or potentially relied on by designated decision makers in awarding fire control costs since the enactment of the Wildfire Act to the present. [11] With respect to the category 4, he stated: To clarify, we are seeking internal memoranda or emails that were made available to any designated decision makers regarding the establishment and/or use of the insurance premium tax as a factor in deciding whether or not to order fire control costs. [12] Mr. Unger requests that the Commission order the Government to produce these documents on or before April 25, 2013. Mr. Unger advises that he has requested these documents from the Government, and the Government opposes the production of these documents. Mr. Unger also advises that he has received one internal Ministry document, dated May 16, 2011, which states that former interpretations of sections 25 and 27 of the Wildfire Act were contrary to the government s mandate. [13] The Government opposes the disclosure of these documents on the basis that they are irrelevant to the issues before the Commission. RELEVANT LEGISLATION [14] Sections 133 and 135 of the Code state as follows: 133 The commission or a member of it may make an interim order in an appeal. 135 The commission or a member of it has the same power as the Supreme Court has for the trial of civil actions (a) to summon and enforce the attendance of witnesses, (b) to compel witnesses to give evidence on oath or in any other manner, and (c) to compel witnesses to produce records and things. DISCUSSION AND ANALYSIS

DECISION NO. 2012-WFA-002(a) Page 7 Parties submissions [15] Mr. Unger submits that the documents are relevant to the appropriate interpretation of certain sections of the Wildfire Act and the Wildfire Regulation. He further submits that these matters are relevant to the appeal, and will assist the Commission in interpreting the legislation. [16] Regarding the May 16, 2011 internal Ministry document that has already been disclosed by the Government, Mr. Unger submits that the document requested a change in Ministry policy during the time between Mr. Unger s opportunity to be heard and the release of the original determination and cost recovery order on May 24, 2011. Mr. Unger argues that internal documents with respect to government s mandate and/or other factors which prompted this policy change will be helpful to the Commission in assessing the appropriateness of the Ministry s policy change, which will be an issue in the appeal. [17] With regard to the admissibility of the documents, Mr. Unger submits that the Commission s Procedure Manual indicates that the rules of evidence are less formal in appeal hearings than in court hearings, and relevant evidence is evidence that will shed some light on the disputed matter, or tend to prove or disprove a fact in issue. Mr. Unger submits that the requested documents will shed light on various disputed matters in the appeal, including procedural fairness, the correctness of the decision, whether the Fire Centre Manager s discretion was fettered, and whether the effect of the decision on a private citizen was contemplated by the legislation. [18] The Government submits that it is being asked to produce a very large number of documents without any indication of how they could be used to affect the interpretation of the legislation. Specifically, the Government submits that Mr. Unger has identified no doubts about the meaning of sections 25 or 27 of the Wildfire Act, or section 29 of the Wildfire Regulation, that the requested documents might resolve. The Government argues that the law is made by the Legislature, and statements about the purpose of legislation are only relevant if the law is unclear on its face. Further, the Government submits that government officials views on the meaning of legislation do not affect the proper construction of the legislation. The Government submits that no legal authority has been provided to indicate that internal government documents can assist a decision-maker in the interpretation of a statute or regulation. With regard to internal documents on the establishment of the Insurance Premium Tax as a factor in determining liability for fire control costs, the Government submits that the Fire Centre Manager clearly indicated that he did not rely on that policy, and it is clear that the policy was revoked because it amounted to unlawful fettering of discretion. The Government argues that it is unclear how documents surrounding the creation of a revoked policy could shed light on the decision under appeal. [19] The Government submits that the policy document referred to in the determination is relevant and has been disclosed. The Government also submits that the internal government document seeking to change the policy has also been disclosed, and the Government accepts that the policy change is relevant to the correctness or reasonableness of the decision. The Government says that it took the view that the existing policy was unlawful and had to be revoked immediately.

DECISION NO. 2012-WFA-002(a) Page 8 The Government submits that the only additional documents that could shed light on that view would be legal advice, which would be privileged and protected from disclosure. While the Government acknowledges that the legality of the former policy, the new policy, and the decision will all be the subject of legal arguments in the appeal, it submits that internal government documents regarding the creation or interpretation of sections of the legislation, and the creation of the revoked policy, are irrelevant to the issues in the appeal. [20] In reply, Mr. Unger submits that he intends to argue in the appeal that sections 25 and 27 of the Wildfire Act and section 29 of the Wildfire Regulation are ambiguous with respect to: whether they permit an award for fire control costs regardless of any contravention of the Wildfire Act; and, whether there is no discretion as to the amount of fire control costs that may be awarded. Mr. Unger submits that the documents in categories 1 and 2 regarding the creation of those sections will assist the Commission in considering whether they are ambiguous, and will shed light on the government s mandate regarding enacting those sections. [21] Additionally, Mr. Unger advises that in the appeal, he will argue that the Ministry s policy change is evidence of fettering and a breach of procedural fairness. Mr. Unger submits that the documents in categories 3 and 4 concern the Government s interpretation of the noted sections of the Wildfire Act and the Wildfire Regulation, and the Government has not raised any issue with respect to expense or the scope of production. Mr. Unger submits that the internal Ministry Information Note that has already been disclosed directs decision-makers as to the factors the can and cannot be considered in awarding fire control costs, and a policy change seems to have been considered necessary to ensure that the determination regarding Mr. Unger was made in a manner consistent with the government s mandate. Mr. Unger submits that producing other documents regarding that policy change is consistent with the Commission s responsibility to admit any documentary evidence that will shed light on the disputed matter. [22] Finally, Mr. Unger submits that the documents in categories 3 and 4 are of even greater relevance and importance than those in categories 1 and 2. Commission s findings [23] The Commission s Procedure Manual states as follows with respect to Obtaining a Summons : Arranging for the attendance of witnesses and production of documents and other evidence at a hearing must be performed by the parties. However, in some cases, a proposed witness refuses to voluntarily attend a hearing to testify or a party refuses to produce, or does not have access to, certain relevant documents. The Commission has the power to summon and enforce the attendance of a witness at a hearing and to compel a witness to produce records and things under certain statutes. If production of documents or other items is requested, a reasonably detailed description of the documents or items should be included that would enable a

DECISION NO. 2012-WFA-002(a) Page 9 reasonable person to know what evidence is being sought, along with the reasons why such materials are relevant to the subject matter of the appeal. Where sufficient detail is not provided in the request, the Commission may ask for additional information. In deciding whether to issue a summons, the Commission will consider whether the information sought to be obtained through this person is relevant to the appeal, whether that person is reasonably likely to be able to supply it and any other factors the Commission considers relevant. [24] In deciding whether to make an order for production of documents, the test applied by the Commission is focused on relevance; specifically, whether the information sought is relevant to the appeal. In determining relevance, there must be a reasonable possibility that the information sought would be useful to the party seeking that information during the preparation and presentation of that party s case before the Commission. In addition, as stated above, the Commission will consider whether the requested documents are protected by a privilege at law, and whether the person is able to supply the evidence sought. [25] After reviewing each of Mr. Unger s requests for information, the Commission has concluded as follows. 1.) Request for internal government documents regarding the creation of sections 25 and 27 of the Wildfire Act. 2.) Request for internal government documents regarding the creation of sections 28 to 34 (in particular section 29) of the Wildfire Regulation. [26] These requests are denied. Mr. Unger advises that he intends to argue that sections 25 and 27 of the Wildfire Act and section 29 of the Wildfire Regulation are ambiguous in certain respects, and that internal government documents regarding the creation of these provisions will assist the Commission in interpreting them. However, the Commission finds that the rules of statutory interpretation, which apply to the provisions of the Wildfire Act and the Wildfire Regulation, indicate that the proper approach in determining the intention of a provision in an Act or a regulation is, first and foremost, to consider the plain and ordinary meaning of the words, in their legislative context. Secondary sources, such as Hansard records dating back to when the statutory provisions were debated and voted on by the Legislature, should be only considered in ascertaining the legislative intent if the statutory language is vague. [27] Moreover, internal Ministry documents pertaining to the creation of these statutory provisions would likely be accorded no weight by the Commission, if they were admitted as evidence. The Commission has the authority to decide questions of law, and has specialized expertise in the interpretation of the statutes under which it hears appeals, including the Wildfire Act and its regulations. The Commission has previously found that, when it is interpreting its enabling statutes, the opinions of Ministry officials regarding the intent of legislation carry no weight. [28] In Western Forest Products Ltd. v. Government of British Columbia (Appeal Nos. 2005-FA-002(a) et al., issued May 19, 2011) [Western], the Government applied to have a Ministry employee qualified as an expert witness to give opinion evidence with respect to the content and application of the Coast Appraisal Manual

DECISION NO. 2012-WFA-002(a) Page 10 ( CAM ), which the courts have held to be akin to subordinate legislation. The employee had many years of experience in drafting the language in the CAM, and the Government submitted that his evidence should be admitted as relevant extrinsic evidence of legislative intent. The Appellant objected. Although the Commission decided to admit the evidence, the Commission accorded the evidence no weight, and the evidence had no bearing on the Commission s decision. At paragraph 42, citing Sullivan and Driedger on the Construction of Statutes (4th ed., R. Sullivan), the Commission stated as follows: Although Mr. Silvestrini may have drafted the words in the CAM, those words, once published, are detached from their origin and take on a life of their own one over which the reader has substantial control, as stated by Driedger. The Minister s intention in approving the CAM is to be determined by the reader, based on the reader s understanding of the words in the CAM, read in their ordinary sense harmoniously with the scheme and objects of the CAM and its parent legislation. [29] The Commission finds that the same reasoning applies equally to the interpretation of the Wildfire Act and the Wildfire Regulation. Consequently, even if there are internal government documents regarding the creation of specified sections of the Wildfire Act and the Wildfire Regulation that may assist as extrinsic aids to interpretation, they are likely to be accorded little or no weight by the Commission, and therefore, are irrelevant to this appeal. 3.) Request for any other internal memoranda, including emails, regarding the appropriate interpretation of sections 25 and 27 of the Wildfire Act and sections 28 to 34 of the Wildfire Regulation (beyond the information previously provided, dated May 16, 2011) [30] Mr. Unger has clarified that this request seeks internal memoranda that would have been available to any designated decision makers in making determinations with respect to fire control costs, and includes any information notes or other similar documents that were made available to and/or potentially relied on by designated decision makers in awarding fire control costs since the enactment of the Wildfire Act to the present. [31] This request is granted in part. The Commission finds that this request is overly broad, insofar as it seeks documents that were available to any designated decision makers in making determinations with respect to fire control costs since the enactment of the Wildfire Act to the present. [32] The Commission finds that its previous findings in Western provide guidance in this regard. In that case, the Appellant sought to introduce a number of internal Ministry documents. The Appellant argued that the documents were admissible as extrinsic aids to interpreting the CAM, citing Western Forest Products Ltd. v. HMTQ, 2009 BCCA 354 [Western v. the Commission]. In paragraph 23 of that case, the Court confirmed that the Commission may admit, as aids to interpretation of the CAM, policy statements and explanatory documents issued by the same ministry that had authored the [CAM]. The Government objected to the admission of the documents on the basis that they were irrelevant, unreliable, and/or lacked an institutional quality. At paragraph 56 of its decision in Western, the Commission decided to admit the documents as extrinsic evidence based on the Court s findings

DECISION NO. 2012-WFA-002(a) Page 11 in Western v. the Commission, but the Commission gave the documents limited weight, because they provided limited assistance to the Commission. Specifically, the documents provided little assistance in deciding the issues in the appeals, because the documents were either too general in nature, or the documents pertained to old versions of the CAM that were no longer in force and were not relied on by the decision-maker who made the appealed decisions. [33] The Commission finds that the same reasoning applies to the present application. Specifically, the Commission finds that the only documents in this category that may be relevant to this appeal are those that were considered by the Fire Centre Manager when he made his original determination/cost recovery order, and his subsequent review decision. Any such documents that may have been available to delegated decision makers at other times, or were available to the Fire Centre Manager at the relevant time but were not considered by him in making his decision with respect to Mr. Unger, are irrelavant to the present appeal. [34] Thus, the application is granted only in respect to internal memoranda, including emails, that were considered by the Fire Centre Manager in making his decisions with respect to Mr. Unger. The Commission is satisfied that there is a reasonable possibility that such information could be useful and relevant to the Commission in deciding the issues in the appeal, including the issue of whether the Fire Centre Manager fettered his discertion, and that early disclosure of such information would assist Mr. Unger in preparing his case. 4.) Request for any other internal memoranda, including emails, leading to the establishment of the insurance premium tax as a factor in determining liability under the Wildfire Act and Wildfire Regulation. [35] Mr. Unger has clarified that he is seeking internal memoranda or emails that were made available to any designated decision makers regarding the establishment and/or use of the insurance premium tax as a factor in deciding whether or not to order fire control costs. [36] This request is denied. The Commission finds that this request is overly broad, as it seeks such documents that were available to any designated decision makers who may have considered the insurance premium tax as a factor in deciding whether or not to order fire control costs, rather than seeking documents of this nature that were relied on by the Fire Centre Manager in reaching his decisions with respect to Mr. Unger. [37] Furthermore, the Commission finds that the Fire Centre Manager s review decision indicates that he did not rely on the Insurance Premium Tax exception in the Ministry s policy as a factor in deciding whether to order fire control costs against Mr. Unger. His review decision states, in part: Furthermore, interim guidelines circulated in Wildfire Management Branch at the time of my determination indicated that the exception related to the Insurance Premium Tax should no longer be applied. Therefore, even if there were proof of valid fire insurance coverage for the cost of fire control activities to protect forest lands or grass lands, Branch guidance was that that should not override the general guidance that owners of private land should be billed for fire suppression costs for fires they cause on their lands.

DECISION NO. 2012-WFA-002(a) Page 12 I had considered whether or not ability to pay should be a valid consideration in making my determination and [I] determined that it is not. I did not take insurance coverage into account as a factor in the context of ability to pay. Rather, I determined that ability to pay was not, itself, a factor that I should consider. [underlining added] [38] Moreover, the Commission finds that the Government has disclosed the policy document referred to in the Fire Centre Manager s review decision, as well as the internal government document described by Mr. Unger as an Information Note proposing changes to either the Ministry s policy or the Wildfire Regulation. The Commission also accepts that the Government s submission that the only additional documents that could shed light on this matter would be legal advice, which is privileged and protected from disclosure. ORDER [39] Accordingly, pursuant to section 133 of the Code, the Government is hereby ordered to produce for Mr. Unger, by April 25, 2013, any internal memoranda, including emails, regarding the appropriate interpretation of sections 25 and 27 of the Wildfire Act and sections 28 to 34 of the Wildfire Regulation (beyond the information previously provided, dated May 16, 2011) that were considered or reviewed by the Fire Centre Manager when he made his original determination/cost recovery order and his review decision with respect to Mr. Unger. [40] A copy of the Order is attached to this decision. [41] All other requests for disclosure of information are hereby denied. Alan Andison Alan Andison, Chair Forest Appeals Commission April 22, 2013

Forest Appeals Commission Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: www.fac.gov.bc.ca E-mail: facinfo@gov.bc.ca IN THE MATTER OF THE APPEAL OF The Review Decision confirming a Determination and Cost Recovery Order issued to Robert Unger pursuant to the Wildfire Act (Order No. FCA-27538) ORDER TO PRODUCE DOCUMENTS TO: Government of British Columbia TAKE NOTICE THAT you are ordered to produce all documents or things in your possession or control, as specified below, that are admissible and relevant to the above-noted matter. any internal memoranda, including emails, regarding the appropriate interpretation of sections 25 and 27 of the Wildfire Act and sections 28 to 34 of the Wildfire Regulation (beyond the information previously provided, dated May 16, 2011) that were considered or reviewed by the Fire Centre Manager when he made his original determination/cost recovery order and his review decision with respect to Mr. Unger. One copy of all relevant documents is to be provided directly to the Appellant s counsel in this matter. You must comply with this order by no later than April 25, 2013. Please note sections 133, 135 and 136 of the Forest Practices Code of British Columbia Act attached hereto. Alan Andison DATE:_April 22, 2013 Alan Andison, Chair Forest Appeals Commission

Forest Practices Code of British Columbia Act Interim orders 133 The commission or a member of it may make an interim order in an appeal. Witnesses 135 The commission or a member of it has the same power as the Supreme Court has for the trial of civil actions (a) to summon and enforce the attendance of witnesses, (b) to compel witnesses to give evidence on oath or in any other manner, and (c) to compel witnesses to produce records and things. Contempt 136 The failure or refusal of a person (a) to attend, (b) to take an oath, (c) to answer questions, or (d) to produce the records or things in his or her custody or possession, makes the person, on application to the Supreme Court, liable to be committed for contempt as if in breach of an order or judgment of the Supreme Court.