British Columbia v. Louisiana-Pacific Canada Ltd.

2012 BCSC 1546 British Columbia v. Louisiana-Pacific Canada Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia v. Louisiana-Pacific Canada Ltd., 2012 BCSC 1546 Date: 20121022 Docket: S113620 Registry: Vancouver Between: Her Majesty the Queen in Right of the Province of British Columbia Appellant And Louisiana-Pacific Canada Ltd. and The Forest Appeals Commission Respondents Before: The Honourable Mr. Justice Harvey On appeal from the decision of The Forest Appeals Commission made May 16, 2011, Louisiana-Pacific Canada Ltd. v. Government of British Columbia, File No. 2009-WFA-004(b) Reasons for Judgment Counsel for the Appellant: B. Bandechha Counsel for the Respondent, Louisiana-Pacific Canada Ltd.: B. Greenberg Counsel for the Respondent, The Forest Appeals Commission: M. Underhill Place and Date of Hearing: Vancouver, B.C. July 5 and 6, 2012 Place and Date of Judgment: Vancouver, B.C. October 22, 2012 [1] This is a statutory appeal pursuant to s. 141(1) of the Forest Practices Code of British Columbia, R.S.B.C. 1996, c. 159, by the appellant, from a decision made by the Forest Appeals Commission ("FAC"). [2] The issues on appeal are as follows: 1. Did the majority of the FAC err in law when they defined the word "escape" as contained in s. 22(3) of the Wildfire Regulations, B.C. Reg. 38/2005 ("Regulations") under the Wildfire Act, S.B.C. 2004. c.31 ("Act")?; and 2. Did the majority of the FAC err in law when they

replaced the word "or" in s. 22(4) of the Regulations and replaced it with the phrase "and is"? Background [3] The background to this appeal arises out of the following circumstances. [4] The respondent forest company, Louisiana-Pacific Canada Ltd. ("Louisiana-Pacific"), burned debris piles within a clear cut area and those fires spread from the debris piles into an open area. In the result, Louisiana Pacific was cited for alleged violations of s. 22(3) and (4) of the Regulations. [5] A Ministry delegated decision maker and manager of the Southeast Fire Centre, Mr. E. Denoyers held a hearing and determined Louisiana-Pacific was in contravention of the Regulations for allowing the fire to "escape" in contravention of s. 22(3) and for permitting the fire to burn outside the designated burn area without putting into effect the preventative measures described in s. 22(4) (a), (b) and (c). A fine of approximately $4,000 was levied against the respondent. Louisiana-Pacific appealed to the FAC. The Decision of the Forest Appeals Commission [6] On appeal, the FAC held that Louisiana-Pacific was not in contravention of the Regulations. In the course of their decision, the majority of the commission undertook the interpretation of the meaning of certain words within s. 22 (3) and (4) of the Regulations. [7] The commission decision was split 2-1 with the majority overturning the decision

of the statutory decision maker and determining that Louisiana-Pacific was not in contravention of the Regulations. [8] At all times, Louisiana-Pacific was a licence holder of Forest Licence A17646 CP-827 Block 10 (the "Cutblock"). The Cutblock is located on vacant Crown Land in the Kootenay River drainage south of Golden, B.C. [9] Louisiana-Pacific held a valid category 3 open fire registration number for the Cutblock. The effect of which was to allow it to burn debris within the confines of the Cutblock subject to the Regulations governing such fires. [10] On or about Friday, October 19, 2007, two employees of Louisiana-Pacific, Mozell and Zimmer, ignited three logging debris piles in the Cutblock. There was snow on the ground at the time that was to act as a fuel break to contain the fire. [11] On October 20, 2007, Mozell discovered that the fire from the three debris piles had spread from the piles outside of the burning area and past the fuel break. Louisiana-Pacific staff checked the Cutblock between October 22 and October 25, 2007. At no time did any of the Louisiana-Pacific employees take any significant action to extinguish the spread of the fires or report it to the Ministry of Forests (the "Ministry"). [12] On October 24, 2007, a compliance and enforcement technician working for the Ministry attended the Cutblock and observed that the fires had spread from the debris

piles. He further observed what appeared to be multiple instances of smoke rising in the slash near the fires' perimeters. He reported the spread of the fires to Louisiana-Pacific's employees and to the Southeast Fire Centre. [13] The fires self-extinguished sometime between October 24, 2007, and November 1, 2007. Mr. Denoyers estimated the burn area, as a result of the fires, to be some three hectares of area within the Cutblock. At no point did the fires extend beyond the boundaries of the Cutblock. [14] On October 15, 2009, following the hearing Mr. Desnoyers, Louisiana-Pacific was found to be in contravention of s. 22(3) of the Regulations, for failing to ensure that the fires did not escape and in contravention of s. 22(4) of the Regulations found that once the fires had spread beyond the burn area, or otherwise became out of control, there was no fire control carried out, no effort to extinguish the fires and the fires were not reported as required by the Regulations. [15] Mr. Desnoyers determined the term "escape" as found in s. 22(3) of the Regulations meant "a spread of fire beyond the fuel break" not a spread beyond the edge of the Cutblock. He determined that these fires had indeed spread beyond the fuel break. This finding of fact was not contested on appeal. [16] On May 16, 2001, following a hearing on appeal, the FAC reversed the contravention orders and held that

Louisiana-Pacific was not in contravention of the regulation by a 2-1 majority. [17] The majority determined that the word "escape" in s.22(3) meant an escape of fire beyond the Cutblock in question as opposed to an escape beyond the burn area. [18] The majority found s. 22(4) to be unclear and held that the section was contravened only if a fire spreads beyond the burn area and is out of control. It defined "burn area" as it appears in s. 22(4) as including "the area between the edge of the piles and the interior edge of the fuel break". [19] The majority held that the wording in s. 22(4) was intended to be conjunctive, effectively replacing the word "or" with the phrase "and is", such that even though the fire had spread beyond the burn area, it was never out of control and thus Louisiana-Pacific was not in contravention of ss. 22(4)(a), (b), or (c). [20] On the basis of those interpretations, the majority commission held that since the fires were neither out of control nor did they "escape" outside the Cutblock boundaries, Louisiana-Pacific did not contravene the Regulations. [21] A minority decision was delivered. In the minority decision the word "escape" in s. 22(3) was defined as an escape of fire beyond the "burn area". "Burn area" was defined as the "area under piled material and includes adjacent material that could reasonably be expected to char or burn or otherwise

not function as a fuel break, up to, but not including, the fuel break." The minority found there was an escape of the fire in contravention of s.22(3). [22] The minority found the wording of s. 22(4) clear and in no need of revision to meet the legislative intent. It held that the word "or" required that the obligations under ss. 22(4)(a), (b) and (c) came into play if either of two events occurred: (1) the fire burned beyond the burn area or (2) was otherwise out of control. Only one, not both, of the preconditions need be satisfied for the obligations in ss. 22(4) (a), (b) and (c) to come into play. [23] In light of this different interpretation, the minority commission would have upheld the decision of Mr. Denoyers finding that Louisiana-Pacific was in violation of ss. 22(4)(a), (b) and (c) given there was no immediate fire control, no efforts were made to extinguish the fires , and they did not report the fires. Position of the Parties [24] On behalf of the appellant Crown, it is submitted that the majority's determination that the term "escape" in s. 22(3) of the Regulations means an escape of fire from the Cutblock, rather than the burn area, is unreasonable. The Crown notes a Cutblock can be up to 60 hectares in size and suggests it would be absurd to conclude that a category 3 open fire could extend to the whole of the 60 hectares before there was an "escape." Instead,

the Crown suggests the legislation clearly contemplates that an escape will have occurred when the fire is no longer contained in the area intended to be burned, i.e. the burn area. [25] Secondly, the Crown submits that the majority's determination that a contravention under s. 22(4) only happens where the fire has spread "beyond the burn area" and is "out of control" is contrary to the wording of the legislation and common sense. The provision in question is clear that s. 22(4) comes into play when a fire "spreads beyond the burn area or otherwise becomes out of control." By replacing the word "or" with the word "and" in s. 22(4) it is submitted that the majority has effectively rewritten the legislation where there was no need to do so and, indeed, it has done so in a manner inconsistent with the scheme and purpose of the legislation which is said to be the prevention of the spreading of wildfires. [26] On behalf of the respondent, Louisiana-Pacific submitted that the majority undertook an extensive review of the purpose of the legislation when arriving at its conclusions and the results are clearly within the confines of the test of reasonableness. The respondent submits, and I agree, I am not able to substitute my opinion for that of the majority determination unless I find that the majority's determination has been unreasonable having regards to the entirety of the

legislative scheme and, specifically, other provisions contained within s. 22 of the Regulations. The Standard of Review [27] Each of the parties agrees that the appropriate standard of review is that of "reasonableness" as opposed to "correctness": Telus Mobility Inc. v. British Columbia (Ministry of Forests and Range), 2012 BCSC 459 ("Telus"). The Crown originally advanced the appeal on the basis that the standard of review was correctness but abandoned this position at the commencement of hearing in the face of the Telus decision. The appeal in Telus was from a decision of the FAC which involved interpretation of the Act and the Regulations. [28] In Telus, Russell J. concluded as follows: [64] It is clear that the FAC is a specialized tribunal: International Forest Products Ltd. v. British Columbia (Forest Appeals Commission) (1998), 12 Admin. L.R. (3d) 45 at para. 41 (B.C.S.C.). It hears appeals from decisions made under a number of acts and their Regulations primarily relating to the forest industry. It may be true that the FAC is not an expert in wildfires (this was not addressed at length by any party and I, therefore, make no finding in this regard), but that does not necessarily or automatically mean that it is not familiar with the Wildfire Act and its Regulations. Dunsmuir requires deference when the administrative body is interpreting "statutes closely connected to

its function, with which it will have particular familiarity." It does not require the body to be an expert in the field. [65] There is no doubt the Wildfire Act and its Regulations are connected to the FAC's function. The FAC is the body to which parties appeal when they are unhappy with a decision under the Wildfire Act and its Regulations. This, in turn, would require a certain familiarity with the legislation. [66] Furthermore, it stands to reason that forestry practices must, to some extent, involve precautions or practices in relation to forest fires. I note that requirements of the forest industry to assist in preventing wildfires are also spelled out in the Wildfire Regulation. For this reason alone, the FAC would have a familiarity with the legislation. It also appears that the legislation from which the FAC hears appeals is itself interconnected. For example, the Forest Practices Board Regulation, B.C. Reg. 15/2004, is a regulation for both the Wildfire Act and the Forest and Range Practices Act, S.B.C. 2002, c. 69. [67] I find that the FAC was interpreting "statutes closely connected to its function, with which it ... [has] particular familiarity." Accordingly, the appropriate standard of review in this case is reasonableness. (emphasis added by Russell J.) [29] In Dunsmuir, the SCC defined the standard of reasonableness as paras. 47-49 as follows: [47]

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [48] The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial

review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference "is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers" (Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, at p. 596, per L'Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that the concept of "deference as respect" requires of the courts "not submission but a respectful attention to the reasons offered or which could be offered in support of a decision": "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L'Heureux-Dubé J.; Ryan, at para. 49). [49] Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference "recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime": D. J. Mullan, "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59, at p.

93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. [30] Deference does not mean blind adherence. Analysis and Conclusions [31] Section 22 of the Regulations reads as follows: 22 (1) The circumstances in which a person described in section 5(1) or 6(1) of the Act may light, fuel or use a category 3 open fire in or within 1 km of forest land or grass land are as follows: (a) the person is not prohibited from doing so under another enactment; (b) to do so is safe and is likely to continue to be safe; (c) the person obtains a burn registration number for the fire (i) by (A) calling the telephone number made known by the government for that purpose, or (B) contacting an official by other means, and (ii) by providing the information referred to in section 24 of this regulation; (d) the person takes all necessary precautions to ensure the fire is contained in the burn area; (e) the person establishes a fuel break around (i) the burn area, or (ii) each debris pile or windrow; (f) while the fire is burning and there is a risk of the fire escaping the person ensures that (i) the fuel break is

maintained, (ii) a fire suppression system is available at the burn area, of a type and with a capacity adequate for fire control if the fire escapes, (iii) the fire is watched and patrolled by a person to prevent the escape of fire and the person is equipped with at least one fire fighting hand tool, and (iv) the fire does not exceed the capacity of the persons, fire fighting tools and heavy equipment on site for timely action to prevent any fire from escaping. (2) A person who, in the circumstances set out in subsection (1), lights, fuels or uses a category 3 open fire on a burn area must ensure that (a) no windrow on the burn area exceeds 200 m in length or 15 m in width, and (b) the category 3 open fire is extinguished by the date specified by the official or person who issued the burn registration number. (3) Without limiting subsection (1) or (2), a person who lights, fuels or uses a category 3 open fire must ensure that the fire does not escape. (4) If a category 3 open fire lit, fuelled or used in the circumstances set out in subsection (1) spreads beyond the burn area or otherwise becomes out of control, the person who lit, fueled or used the open fire must (a) carry out fire control immediately, (b) extinguish the fire if practicable, and (c) as soon as practicable, report the fire as described in section 2 of the Act. (5) A person to whom subsection (4) applies may

discontinue carrying out fire control if relieved from doing so by an official. (6) A person carrying on an industrial activity who is required under subsection (4) to carry out fire control in respect of a category 3 open fire must make available to fight the fire at least the greater of (a) 2 pieces of heavy equipment, 2 fire suppression systems and 11 workers who are each equipped with at least one fire fighting hand tool, and (b) the workers, fire suppression systems, heavy equipment and fire fighting hand tools as described in section 13 (1) in relation to whichever is applicable, Crown land or land other than Crown land. (7) The person who, under subsection (6), is required to make workers, fire suppression systems, heavy equipment and fire fighting hand tools available must deploy them as appropriate, given the circumstances and conditions applicable to the fire. Did the FAC err in its interpretation of ss. 22(3,(4) of the Regulations? [32] Nowhere in the Act, or the Regulations, are the terms "escape" or "out of control" defined. Nor is any specific meaning given to the term "burn area". [33] The majority found: [165] Although there was a great deal of focus at the hearing on what the witnesses understood these words to mean, the meaning of these words in the context of the Regulation is a question of law and, as such, is a question to be determined by the Panel. In

that regard, the Panel does not view the witnesses' use of the word escape in their evidence or emails as an admission of a contravention. [34] The panel went on to consider the dictionary definition of the term "escape" when used as a verb and came to the conclusion it means to "get away from" or "free from". The question arose as to get away from or free from what or where? [35] In adopting Louisiana-Pacific's position, the majority accepted that the Cutblock was the area of confinement and an escape occurs when the fire spreads beyond the Cutblock boundary. The Cutblock is the legal area of Louisiana-Pacific's responsibility and, according to the majority decision, the company's position was consistent with the results based philosophy underpinning the Act. [36] In adopting the submission of Louisiana-Pacific, the majority found that if the intent of the legislation had been for the word "escape" to bear the same meaning as "beyond the burn area", it could have used the word escape in s. 22(4) instead of "beyond the burn area" or it could have used "beyond the burn area" in s. 22(3), instead of the word "escape". [37] The majority found the intentional use of the different words and phrases in two consecutive sections of the regulation, led to the conclusion that the legislature intended the word "escape" in s. 22(3) to mean something different from "spreads beyond the burn

area or otherwise becomes out of control", the phrase used in s. 22(4) of the Regulations. [38] If the word escape in s. 22(3) is not referring to the burn area, then where must the fire spread beyond to constitute "escape"? To answer that question, the majority considered the legislative intent of the Act and Regulations as a whole and concluded the legislative intent was to protect forest land, grass land and public safety, by controlling, ameliorating, and, where possible, eliminating the risk of wildfires caused by the burning activities in or near forest and grass lands. [39] The burning of slash is one of the means used to accomplish those objectives. Burning slash piles reduces the risk of a future unplanned fire igniting in the debris left over from logging operations which could then damage or destroy regenerated forest plantations within the Cutblock as well as mature timber in surrounding areas. Slash burning is a hazard abatement procedure to prevent uncontrolled or uncontrollable wildfires. [40] The majority reasoned that to deal with one hazard, there exists a potential for creating another hazard; controlled burns becoming wild fires. It concluded the Regulations reflect an attempt to balance these competing objectives and minimize the risks to forest land, grass land and public safety. In doing so, the Regulation created various categories of open fires and set

forth conditions that must be met for each category of open fires taking into account the risk of each category and weighing the risk of the fire spreading to the forest resources the legislation seeks to protect. [41] In that context, the word "escape" was determined to mean the legal boundary of responsibility of the licensee; the Cutblock. The majority found: [183]...Debris piles and windrows can be created throughout an entire cutblock area. This may be why the burn registration in the forestry context uses the blocks in the legal description rather than a more precise area. [184] In the Panel's view, an escape must extend to a larger area than that covered by debris piles or even small buffers surrounding the debris piles. In this case, the legal boundary of a Cutblock, within the definition of an approved cutting permit, is the legal area of responsibility from which fires would escape. Although a cutblock is large, this interpretation takes into consideration the presumption of consistent expression referenced above, and it also recognizes the legislative intent of protecting forest land and grass land beyond the cutblock boundaries, among other things like human safety." [42] The majority went on to note that the consequences for breach of s. 22(3) were serious, including an administrative penalty of up to $100,000 if "an escape" occurs. [43] Other sections of the

Regulations require a licensed fire be kept within the fuel break or burn area such that if "escape" were given the meaning asserted on behalf of the appellant, it would render those other sections meaningless or redundant. Further, it would be contrary to the principle of consistent expression referred to in the majority's reasons relying on the following passage from Ruth Sullivan ed. Driedger on the Construction of Statutes 3rd ed. (Toronto: Butterworths, 1994) p. 163 ("Driedger"): It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. ... Once a particular way of expressing a meaning has been adopted, it is used each time that meaning is intended. Given this practice, it then makes sense to infer that were a different form of expression is used, a different meaning is intended. [44] Hence, the majority's answer to the question: "Escape from where" was determined to be "beyond the Cutblock". [45] I am satisfied the decision of the FAC as it pertains to the interpretation of the word "escape" in s. 22(3) is reasonable. In my view, the interpretation accords with the principles of proper statutory construction as expressed in Driedger and is within the range of possible acceptable outcomes. Did the majority of the FAC

err in law when they replaced the word "or" in s. 22(4) of the Regulations and replaced it with the phrase "and is". [46] The majority of the FAC concluded that the words "or otherwise becomes out of control" modify the phrase "spreads beyond the burn area." The majority noted s. 22(4) requires the following where a category 3 open fire "spreads beyond the burn area or otherwise becomes out of control." The person who lit the fire must complete three tasks: carry out fire control immediately; extinguish the fire if practicable; and, as soon as practicable, report the fire as described in s. 2 of the Act. The significant requirements of the Regulations suggest that the fire must be out of control to trigger s.22(4)(a) (b) and (c). [47] In reaching their conclusion, the majority stated: [202] In addition, the Legislature has recognized that, if a fire is getting out of control, it is important to perform fire control actions promptly and to alert the authorities as quickly as possible to coordinate appropriate monitoring and/or actions in order to prevent its spread into forest land or grass land. In the Panel's view, this is the purpose of section 22(4) of the Regulation. [203] Accordingly, the Panel finds that the words "or otherwise out of control" in subsection 22(4) is a qualifier to the preceding words "spreads beyond the burn area". Therefore, a contravention only lies

where the facts support a finding that the fire had spread "beyond the burn area" and is "out of the control" of the people and or equipment required to be present at the time of the burn. In the Panel's view, the main objective of the legislation is for a planned burn or campfire to be kept in control and the main issue being addressed in s. 22(4) is a fire that is becoming out of control. [emphasis in original] [48] The minority decision supports the submission of the appellant Crown. The minority considered the meaning of the term "otherwise becomes out of control" at para. 259 onward, where it stated as follows: [259] Section 22(4) of the Regulation states: 22 (4) If a category 3 open fire lit, fuelled or used in the circumstances set out in subsection (1) spreads beyond the burn area or otherwise becomes out of control, the person who lit, fueled or used the open fire must (a) carry out fire control immediately, (b) extinguish the fire if practicable, and (c) as soon as practicable, report the fire as described in section 2 of the Act. [260] For the subsections (a), (b) and (c) to apply, the precondition is that the category 3 open fire "spreads beyond the burn area or otherwise becomes out of control". The precondition has a logical structure of the form 'if either A or B are true then C applies'. Given this logic, the precondition is satisfied if either the "fire spreads

beyond the burn area" or "otherwise becomes out of control". [261] I find that the Regulation imposes two main obligations on a person performing a category 3 open fire: to maintain control of a fire, and to contain it within the burn area. If a person fails to contain a fire within the burn area then, according to section 22(4), the person has lost control of the fire. In my view, the proper reading of this section is that, spreading beyond the burn area is a particular instance of "otherwise becoming out of control". The value of explicitly stating this in the Regulation is that a person need not evaluate whether a fire is out of control; rather, the person only needs to determine whether it has spread beyond the burn area.

262. Based on the evidence presented, I find that the fires spread beyond the burn areas. I therefore find that the fires were out of control; the precondition of this section is met. [49] Based on those interpretations, the minority would have dismissed the appeal subject only to the defence of due diligence which, both the appellant and respondent acknowledge here were not properly considered by the majority and, if the appeal is allowed, the matter is to be remitted to the FAC for determination as to the defence of due diligence and/or officially induced error. [50] The respondent acknowledges the majority's interpretation of s. 22(4) essentially re-writes that section substituting the word "and" for "or". [51] The respondent refers to Daniel Greenberg ed. Craies' on Legislation, 8th ed. (London: Sweet & Maxwell Limited, 2004) p. 329 where at para. 8.2.11 the learned author, in discussing the use of the word "or" noted: If one had to choose two words as being more difficult to use and understand in legislative drafting than any others they would be "or" and "any". As to "or", it is important to remember that it is not always, depending on the context, necessarily disjunctive. In the phrase, for example, "may proceed against him in the High Court for damages or such other relief as the court thinks appropriate" it would be perverse to argue that Parliament requires you to

choose between compensation for past loss and curtailment of future loss. This is well understood in statutory construction. Where there would be a strong policy argument for construing "or" as necessarily disjunctive the draftsman is well advised to add words to deal with the point, securing certainty at the expense of simplicity: but not otherwise. Some draftsman avoid the difficulties that can arise from the use of "or" and "and" by omitting any conjunction between paragraphs in certain contexts. In conferring powers, for example, it is common to avoid the suggestion that a power to a "(a) and (b)" is a power to do both things but not either, and the suggestion that a power to do "(a) or (b)" is a power to do either thing but not both, by separating paragraphs (a) and (b) with a semicolon but no conjunction. This requires each paragraph to be read as flowing independently from the chapeau and puts it beyond doubt that the power is to do either or both. This practice has the additional advantage that, by eliminating the conventional use of a conjunction in a place where it is clearly not intended to have its conjunctive (or disjunctive) effect, it will encourage the courts to give "or" and "and" their full disjunctive or conjunctive meanings where they are used. [52] Here, says the respondent, to read "or" as disjunctive would lead to an absurdity. The absurdity, says the

respondent, is that the respondent would attract liability under s. 22(4) of the Regulations for allowing the fire to "spread beyond the burn area" but on the majority's interpretation which I have determined is reasonable, no liability would attract under s. 22(3) for allowing the fire to "escape" beyond that same area. [53] The majority, in arriving at its conclusion admittedly read s. 22(4) as if "and" replaced the word "or". It did so after considering the intent of the legislation as a whole and the specific wording of s. 22(4). [54] The panel acknowledged the case had been difficult to decide when it stated, at para. 224: [224] This has been a very difficult case for the Panel to decide. The legislation at issues uses terms in a way that may, at first glance, appear to be interchangeable yet the words chosen are different, which leads to different results depending on the principle of statutory interpretation applied. Further, the lack of certainty in the language can have significant results for the various operators who fall under the Regulation. In the view of the Panel, this Regulation should be amended to ensure that its provisions are clear and may be understood by all of the varied people an industries covered by the legislation. [55] Presumably, the Legislature will pay heed to these remarks. [56] I am satisfied, although I might have reached a different

conclusion were it up to me, that the interpretation given s. 22(4) by the majority accords with the legislative intent underlying the Regulations and is entitled to deference on the reasonableness standard given the evidence heard by the commission, its familiarity with the legislation, its purpose and implementation together with the fact the panel heard extensive evidence which guided the result. [57] I accept as reasonable the majority's summary of its conclusions: 204. In the Panel's view this must be the intent of the Legislature. Although the Respondent submits that once a fire spreads beyond the piles and a small buffer the requirements in (a), (b) and (c) apply this cannot be the intent. As stated by a number of witnesses, it is not uncommon for a debris pile burn to spread further than the piles and a "buffer" area. However, the spread may be tiny - a shovel may be sufficient to "put it out". Other times, it will self-extinguish in the fuel break. It simply cannot be the intent that every small spread beyond the burn area requires reporting, extinguishment, and so on under section 22(4). This would be onerous for the person igniting the fire and could overload the Fire Centres.

205. Rather, the panel finds the requirements to take fire control action and report the fire are triggered when the fire is beyond the burn area and is out of control. "Out of control" in this context means beyond the capacity or capability of the people, equipment or site conditions to prevent further spread of the fire - to prevent the fire from escaping into the forest land or grass land or other values protected by this legislation. [58] In the result I would dismiss this appeal. "Harvey J."