Canadian Railway Company v. British Columbia

2022 BCSC 2263 Canadian National Railway Company v. British Columbia IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Canadian National Railway Company v. British Columbia, 2022 BCSC 2263 Date: 20221228 Docket: S2012954 Registry: Vancouver Between: Canadian National Railway Company Appellant And His Majesty the King in Right of British Columbia and Forest Appeals Commission Respondents Before: The Honourable Madam Justice Sharma On appeal from: An order of the Forest Appeals Commission, dated March 12, 2020 (Decision No. 2018-WFA-002(a)). Reasons for Judgment Counsel for the Appellant: A. Cameron D. Siracusa P. Williams Counsel for the Respondent Forest Appeals Commission: R. Gage Counsel for the Respondent His Majesty the King in Right of British Columbia: D. Suntjens Z. Froese Place and Date of Trial/Hearing: Vancouver, B.C. April 11-14, 2022 Place and Date of Judgment: Vancouver, B.C. December 28, 2022 Table of Contents Paragraph Range I. OVERVIEW [1] - [10] II. FACTS [11] - [56] A. The Fire [12] - [15] B. The Contravention Hearing [16] - [21] C. The Commission Hearing and the Decision [22] - [34] D. The Statutory Framework [35] - [56] 1. Reporting and Preventing Wildfires [36] - [42] 2. Cost Recovery [43] - [48] 3. Appeal to the Commission and to Court [49] - [56] III. DEFINING THE ISSUES [57] - [116] A. The Parties' Positions [60] - [69] B. Legal Principles [70] - [92] 1. Classification of Errors [72] - [80] 2. Applying the Standard of Review [81] - [92] C. Analysis: Correct Classification of Errors [93] - [116] 1. Lack of Jurisdiction [95] - [96] 2. Articulating and Applying the Incorrect Test [97] - [99] 3. Ignoring Evidence, Making Findings in the Absence of Evidence or Considering Irrelevant Evidence [100] - [110] 4. Awarding the Prescribed Value for each Full Hectare [111] - [113] 5. Payroll Loading Costs [114] - [116] IV. ANALYSIS OF ISSUES ARISING ON APPEAL [118] - [158] A. Jurisdiction [118] - [125] B. Correct Interpretation of s. 27 of the Act [126] - [142] C. Payroll Loading Costs [143] - [158] V. ANALYSIS OF ISSUES ARISING ON JUDICIAL REVIEW [159] - [208] A. Fire Control Costs [164] - [181] B. Damage to Resources [182] - [208] 1. Section 30 of the Regulation [184] - [184] 2. The Commission's Decision [185] - [191] 3. Analysis [192] - [208] VI. CONCLUSIONS [209] - [211] I. OVERVIEW [1] This judgement addresses a challenge brought by the Canadian National Railway Company ("CNR") to Decision No. 2018-WFA-002(a) (the "Decision") of the Forest Appeals Commission ("Commission"), issued March 12, 2020. [2] The Decision concerns a wildfire caused by CNR's rail cutting activities (the "Fire"). These activities contravened the Wildfire Act, S.B.C. 2004, c. 31 [Act], and the Wildfire Regulation, B.C. Reg. 38/2005 [Regulation]. The Fire started on June 11, 2015, and was not completely extinguished until October 2015. [3] Pursuant to the legislation, CNR was ordered to pay the government's fire control costs and compensation for damaged resources. CNR appealed the quantum of damages assessed against it to the Commission, but not the findings of contravention. [4] CNR brings both this statutory appeal and an application for judicial review (indexed at Canadian National Railway Company v. His Majesty the King, Vancouver Registry No. S2012916) alleging various errors in the Decision. Pursuant to an order entered April 19, 2021, the two matters were heard together and the evidence in each proceeding applies to the other. [5] The respondent, His Majesty the King in right of British Columbia (the "Province"), provided submissions of the Crown in response to the appeal, and submissions of the Attorney General in response to the application for judicial review. [6] The Commission also made submissions, but appropriately took no position on whether CNR's applications should be granted. [7] There is no dispute that the appeal is restricted to issues raising a question of law. CNR identified a number of errors it submitted properly arose on the appeal. However, I do not agree with CNR's characterization of the issues, and I find only two issues arise on the appeal. Both are questions of statutory interpretation. The parties agreed those issues were subject to a standard of review of correctness. I conclude the Commission's interpretation of the relevant statutory provisions was correct; therefore, the appeal is dismissed. [8] With respect to the application for judicial review, CNR and the Province agreed to a consent order varying one aspect of the Commission's decision. That agreement relates to an alleged breach of procedural fairness by the Commission's redesignation of certain damaged resources from grassland to other forest land. [9] The other errors alleged by CNR relate to the Commission's handling of evidence. I found the errors alleged were questions of mixed fact and law, falling within the scope of judicial review and subject to a standard of review of reasonableness. I conclude the Commission's reasoning and conclusions on all those issues was reasonable. [10] Therefore, except for one order being granted by consent, all other issues in the application for judicial review are dismissed. II. FACTS [11] While CNR challenges the Commission's conclusions regarding the compensation it must pay pursuant to s. 27 of the Act for costs and damage to resources caused by the Fire, there is little dispute about the events surrounding the Fire itself. A. The Fire [12] The following paragraphs from the Decision give an overview of how the Fire started and the Province's actions to quell it: [6] The Fire started at approximately 11:30 am on June 11, 2015, adjacent to CN's railway tracks across the Fraser River and a short distance south of Lytton, BC. Initially, a grass fire was caused by sparks from rail cutting activities. The applicable Fire Danger Class for the area was rated at "extreme" and rail cutting was a "high risk activity" under the Regulation. [7] The Fire was reported shortly after it ignited, and the BC Wildfire Service (the "Wildfire Service") dispatched a crew and began fighting the Fire almost immediately. The Wildfire Service attended to the Fire until September 3, 2015, and it was considered to be extinguished that October. [8] On the first day, the Fire spread rapidly to the north and west due to dry fuel conditions, strong winds from the south, steep terrain, and limited ability to use air support. A First Nations community immediately north of where the Fire started was evacuated that afternoon, and Lytton was put on evacuation alert. [9] Wildfire Service officials evaluated the situation the next morning. The Fire had settled down and some rain had fallen. The railway tracks, power lines and nearby homes on the Fire's east flank and to the north had been spared. The Fire perimeter was nearly 2 km along its eastern flank adjacent to the CN tracks and near the Fraser River, but had spread primarily to the west and north up the steep slopes west of the railroad tracks. [10] Over the next few days, the Fire spread very little. By June 15, 2015, the area within the Fire's perimeter was estimated to be 1,199 hectares ; however, the Wildfire Service's Incident Management Team prepared for the Fire to re-awaken: the forecast was for hot and windy conditions that would predictably dry out the forest fuels and send the fire hazard rating back to extreme within days. Plans were made to continue efforts to contain and fight the Fire using ground crews, heavy equipment and helicopter support. The focus was to anchor the Fire along its south, southwest and east flanks, and to limit its spread north where it could burn homes or impact an adjacent community watershed. Given the steep terrain, accessibility considerations, fuel and weather conditions, a "let burn" strategy was implemented to the west. [13] The Decision goes on to provide a detailed description of the geographic boundaries of the Fire before continuing with the description of efforts to control its spread. One part of the Province's response was two controlled burns, the first of which was employed on June 16: [12] On June 15 [and ]16, the Wildfire Service conducted ignition operations (i.e., planned burns) using helitorches along the north flank of the Fire to protect a community and a community watershed. A test burn was conducted on June 15, but the full ignition operation waited for better burning conditions anticipated on June 16. These operations were considered successful in containing the north flank of the Fire for the time-being. [14] A central issue in both the appeal and the application for judicial review centred on the controlled burn done on June 17 (the "Ignition Event"): [13] On June 17, the seventh day of the Fire, the Wildfire Service conducted an ignition operation using a helitorch to the south and southwest of the Fire's southwest flank to prevent the Fire from spreading south along the Fraser Canyon. Although this ignition operation apparently achieved its intended objectives, it significantly enlarged the area that was burned. No fire control efforts were made on the west flank until June 24, when the Wildfire Service conducted an ignition operation to control the Fire's spread towards the Nikaia Creek community watershed. [15] The Decision continues by describing the aftermath of the Fire. [14] Approximately two weeks after the Fire started, the Wildfire Service considered it to be contained but not extinguished. Crews and machinery were deployed to fight other wildfires in other parts of the Province. Most Fire control efforts after that point consisted of continuing to establish the perimeter control lines, cooling down any remaining hot spots within that perimeter, and then monitoring for flare-ups. [15] The Fire subsequently flared up in a part along the north flank on July 31, 2015, expanding in size and requiring about two weeks to re-establish control in that area. The Fire was allowed to eventually burn itself out into the rocky upper alpine slopes high above the valley floor where it started. [16] The Province spent millions of dollars fighting the Fire. Almost all of the timber through which the Fire burned was killed, and virtually the entire area of 2,199.4 hectares of Crown land within its final perimeter was impacted. Most of the burned area is visible from the Trans-Canada Highway, which wends along the opposite side of the Fraser River, and is subject to a visual quality order under the Government Actions Regulation, BC Reg. 582/2004, related to its scenic value. Part of the burned area also includes a community watershed. [Footnote omitted.] B. The Contravention Hearing [16] On April 18, 2018, the manager of the Prince George Fire Centre (the "Fire Manager"), convened a hearing about CNR's alleged contravention of the legislation. The Fire Manager also determined what penalties and/or awards for payment should follow because of the Fire. [17] CNR argued that there should be reductions to the amounts found payable because there were unreasonable choices made in fighting the Fire that amounted to intervening events, each of which led to the Fire burning for longer than it should have. It submitted that in the absence of those decisions and events, the "Fire would have been extinguished sooner and the claims for fire control costs and Crown resources would have been lower". [18] The Fire Manager did not accept CNR's position, issuing Contravention Order No. FKA-33938 and Administrative Penalty and Cost Recovery Order No. K70122 (2015) (collectively, the "Contravention Decision"). In it, the Fire Manager concluded that: a) CNR did not carry out its rail cutting at a time and in a manner that could reasonably be expected to prevent fires from starting, contrary to s. 6(2) of the Act; b) CNR did not determine the appropriate fire danger class for the location of the rail cutting, contrary to s. 6(2) of the Regulation; and, c) CNR did not carry out the rail cutting activity in accordance with the applicable restrictions and durations, and did not have adequate fire suppression tools on site, contrary to s. 6(3) of the Regulation. [19] Among the facts not disputed by CNR before the Fire Manager were the following: a) The Fire was caused by sparks cast by rail cutting undertaken by CNR crew members on June 11, 2015. b) CNR crew members carried out the rail cutting: i. without consulting representative weather data or determining the fire danger class for the area; ii. within 300 metres of forest land; and, iii. without having a 300-gallon water tank or an adequate fire suppression system, contrary to CNR policy and directives. [20] Accordingly, the Fire Manager ordered CNR to pay the following amounts pursuant to s. 27(1) of the Act: a) An administrative penalty of $75,000.00; b) $7,073,317.97 for the Province's cost of fire control; c) $8,971,289.75 for the value of other forest land resources damaged or destroyed by the Fire; and, d) $169,065.31 for the Province's costs for reforestation or silviculture. [21] CNR has never disputed the findings of contravention nor the administrative penalty. Similarly, it does not dispute that it is required to compensate the Province for fire control costs and damage to Crown resources associated with the Fire. Rather, its position is the amounts assessed for both are too high. C. The Commission Hearing and the Decision [22] The hearing before the Commission occupied 12 days in April and May 2019. [23] CNR relied on the evidence of two experts: a) Gregory Guyan, an expert in wildfire management and suppression strategies, systems and tactics; and, b) Michael Grieg, an expert in identifying visible damage caused by fire to forested areas. [24] The Province called five witnesses: a) Dana Manhard, an expert in identifying visible damage caused by fire to forested areas; b) Scott Rennick, the Base Operations Manager in Lytton who was involved fighting the Fire; c) James Richardson, BC's Wildfire Preparedness Officer who was the Deputy Incident Commander on the Fire; d) Tim Ewart, Incident Commander with the Wildfire Service; and, e) George Campbell, who had become Zone Wildfire Coordinating Officer in summer 2015. [25] At para. 27 of the Decision, the Commission stated that the appeal raised three distinct issues: 1. What, if any, portion of the Fire did not result from CN's contraventions, but rather from intervening events (such as fires set or decisions made by the Wildfire Service) and should not be included when calculating the area damaged or destroyed by the Fire and associated fire control costs? 2. How many hectares of forest land resources and grass land resources were damaged or destroyed by the Fire, and what amounts are payable by CN under the Act and the Regulation? 3. What is the amount of the government's fire control costs attributable to the Fire, and can the Province recover "payroll loading costs" in accordance with section 31(1)(a)(i) of the Regulation? [26] The Commission described the relationship between the three issues as follows: [28] Issue 1 raises a question regarding the Commission's jurisdiction to critique decisions made and strategies employed by the Wildfire Service. If CN is successful on Issue 1, the determinations of quantum in Issues 2 and 3 would be based on a smaller area of Crown land having been damaged or destroyed by the Fire (Issue 2) and reduced payroll costs (Issue 3). [27] After summarizing the parties' positions on the first issue, the Commission concluded: [150] For the reasons provided above, the Panel concludes that: 1. The Commission's role in this appeal is to determine whether the amounts in the Order for fire control costs and the value of damaged or destroyed Crown grass land and other forest land resources are, directly or indirectly, the result of CN's contraventions of the Act and the Regulation. This may properly entail considering whether those amounts are within the scope of the legislation, but not examining whether the various decisions and activities that went into controlling the Fire ought to have been different in order to reduce the burned area and associated fire control costs. 2. Even if the Panel had authority to review how the Wildfire Service controlled the Fire, it would have found that the Wildfire Service's decisions and tactics were within the range of accepted practices. 3. The June 17 ignition operation and the July 31 flare-up were part of the Fire, not separate fires, and did not unnecessarily damage or destroy areas that would not otherwise have been impacted if the contraventions had not occurred. The decision to undertake ignition operations, and the flare-up, were a direct or indirect result of CN's contraventions. 4. CN's contraventions were the cause, whether directly or indirectly, of the damage and destruction to Crown resources within the Fire's final perimeter. 5. Pursuant to sections 27(1)(b) and(c) of the Act, CN is responsible for the value of all damaged or destroyed Crown grass land and other forest resources within the Fire's final perimeter and all fire control costs associated with the Fire. [28] With regard to the second issue (amounts payable for damage to Crown resources), the Commission provided an overview of the evidence and the parties submissions: Decision at paras. 151-160. [29] It then addressed the following topics: a) the meaning of "damaged or destroyed" in the context of the Act; b) land that has suffered incidental damage versus being fully damaged or destroyed; c) the distinction between forest land and grass land; d) a summary of the hectares damaged or destroyed by the Fire, and; e) assessment of the value of the Crown resources damaged or destroyed by the Fire. [30] The Commission concluded as follows regarding the second issue: [212] As previously stated, the Panel adopts the fire damage model used by the Province's expert witness, Mr. Manhard. The model explained by CN's expert, Mr. Greig, was not accepted primarily because it was based on pre-determined assumptions (interpretations from imagery) that were not tested or validated, and were not substantiated by Mr. Manhard's on-the-ground observations. In particular, when viewing orthophotos, Mr. Greig assumed that a lack of visible damage in the areas he labelled as having suffered only incidental damage equated to incomplete burning of the understory, and that the timber in those patches had not been visibly damaged. However, even when he flew over the area as a passenger in a helicopter, he was not able to see the extent of the visible damage to the understory and to individual trees. [31] The Commission ordered CNR to pay $9,378,600.00, a sum representing the dollar value of forest land resources damaged or destroyed by the Fire. [32] With regard to the third issue (fire control costs), CNR disputed the Province's reliance on payroll loading costs, in the form of the benefits chargeback: Decision at para. 222. It submitted those are not recoverable because the Province can only recover its actual costs. [33] The Commission did not agree and concluded as follows: [233] The Panel denies CN's appeal on Issue 3. Although the Panel is varying the amount that CN was billed in the Order for the government's fire control costs, the Panel is doing so based on the Amended ASF, and not based on CN's arguments for doing so. The total of the government's fire control costs resulting directly or indirectly from the contravention, calculated in the prescribed manner, equal $6,944,927.62, as stated in the Amended ASF. This properly includes $344,694.45 for payroll loading costs. The Panel varies the total amount in the Order for government's fire control costs in accordance with the total amount provided in the Amended ASF. [34] The Commission also confirmed certain amounts the Fire Manager ordered CNR to pay, which were not appealed, including $169,065.31 for silviculture and reforestation, a $75,000 administrative penalty, and $52,189.75 for stumpage in respect of damage to mature Crown timber. D. The Statutory Framework [35] The Act and the Regulation constitute a comprehensive scheme to address wildfires in British Columbia. 1. Reporting and Preventing Wildfires [36] The Act creates a set of obligations with respect to preventing and reporting wildfires. Section 2 creates a mandatory duty for anyone who sees an open fire burning in or near forest land or grass land to immediately report it to the appropriate officials. Section 3(1) prohibits anyone from starting or risking starting an open fire in or near forest land or grass land by either "dropping, releasing or mishandling" a burning substance or "any other thing that the person reasonably ought to know is likely to cause fire". Anyone acting contrary to s. 3(1) must, if practicable, immediately extinguish the burning substance and any fire that resulted from its being dropped released or mishandled: s. 3(2). [37] Sections 5-7 address industrial activities. Included in the definition of "industrial activity" is a "railway operation", which includes "the repair, construction, reconstruction and maintenance of the railway track": Act, s. 1; Regulation, s. 1(1) and (3)(c)(v). CNR's rail cutting activity fell within this definition. [38] No one is allowed to light, fuel or use an open fire inside or within one kilometre of forest land or grass land unless they are carrying out an industrial activity in prescribed circumstances: Act, ss. 5(1), 6(1). A person carrying out an industrial activity must do so at a time and in a manner that can reasonably be expected to prevent the activity from starting fires: s. 6(2). [39] If a fire starts in or near industrial activity, the person carrying out that activity has the mandatory duties specified in s. 6(3) of the Act: (3) If, except in the prescribed circumstances referred to in section 5 (1) or subsection (1) of this section, a fire starts at, or within 1 km of, the site of the industrial activity, the person carrying out the industrial activity must (a) immediately carry out fire control and extinguish the fire, if practicable, (b) continue with fire control for the fire until (i) the fire is extinguished, (ii) it becomes impracticable to continue with fire control, or (iii) an official relieves the person in writing from continuing, (c) as soon as practicable, report the fire as described in section 2, and (d) in accordance with prescribed requirements, rehabilitate the land damaged by fire control carried out by the person. [40] There is no dispute that CNR violated the legislation when it carried out rail cutting activity. [41] To combat wildfires, the Act grants the Province extraordinary powers to enter private land and compel provision of labour and equipment: Government may carry out fire control 9 (1) The government may enter on any land and carry out fire control if an official considers that a fire on or near the land endangers life or threatens forest land or grass land. (2) At the request of a local government, the government may enter on land and carry out fire control within the local government's boundaries or jurisdiction. (3) After carrying out fire control under subsection (1), the government may remain on that land or re-enter the land for the purposes of investigating the cause of a fire, rehabilitating the land or for other prescribed purposes. (4) If the government enters on private land to carry out fire control on other land, the government must compensate the owner of the private land and any tenant of the private land for damage caused to the private land by the government in carrying out the fire control. Requisition of facilities, equipment and personnel 16 (1) For the purposes of carrying out fire control, an official may (a) order a person to (i) provide facilities and equipment, that the person owns or has use of, to be used under an official's direction, (ii) assign an employee of the person to carry out fire control, under an official's direction, and (iii) pay the employee his or her usual wages while the employee is acting under an official's direction, or (b) order a person who is 19 years of age or older to assist in fire control if the person (i) is physically capable of doing so, and (ii) is trained to carry out fire control or has skills that can be used in doing so. (2) A person who is the subject of an order under subsection (1), and to whom written notice of the order has been given, must comply with the order. [42] The legislation also allows for the recovery of costs by the Province and provides an administrative scheme for enforcement. Since CNR did not appeal the contravention or administrative penalty, the cost recovery sections of the Act are most relevant to the matter at hand. 2. Cost Recovery [43] The Act provides two statutory mechanisms -- ss. 25 and 26--by which the Province can recoup fire control costs and compensation for damage to Crown resources. Section 25 applies only to private land owners and leaseholders or occupiers of Crown land and is not relevant in the present matter. [44] Section 26, applicable here, provides that a person alleged to have contravened the Act or Regulation will have an opportunity to be heard, after which a determination will be made as to whether the allegation against them has merit. [45] Section 27 of the Act states that where there has been a contravention, the government may determine the amount of fire control costs, and an amount equal to the dollar value of damage to resources: 27 (1) If the minister determines by order under section 26 that the person has contravened a provision, the minister by order (a) may levy an administrative penalty against the person in an amount that does not exceed a prescribed amount, (b) may determine the amount of the government's costs of fire control under section 9 for a fire that resulted, directly or indirectly, from the contravention, calculated in the prescribed manner, (c) may determine the amount that is equal to the dollar value of any (i) Crown timber, (ii) other forest land resources, (iii) grass land resources, and (iv) other property of the government damaged or destroyed as a result, directly or indirectly, of the contravention, calculated in the prescribed manner, (c.1) may determine the costs (i) that have been or will be incurred by the government in re-establishing a free growing stand as a direct or indirect result of the contravention, and (ii) that have been incurred by the government for silviculture treatments that were rendered ineffective as a direct or indirect result of the contravention, and (d) except in prescribed circumstances, may require the person to pay the amounts determined under paragraphs (b) and (c) and the costs determined under paragraph (c.1), subject to the prescribed limits, if any. [46] The amount of cost recovery and the dollar value of damage to resources is calculated pursuant to Part 6 of the Regulation. In particular, s. 30 sets out how compensation is calculated for damages to Crown resources: Determination of damages 30 For the purposes of section 25 (1) (b) and 27 (1) (c) of the Act, the manner in which the dollar value of (a) Crown timber, if it is mature timber, is to be calculated is by ascertaining the amount of stumpage applicable to that timber under the Forest Act and assigning that amount as the dollar value for that timber, (b) Crown timber, if it is not mature timber, is to be calculated is by determining (ii) the average age of the timber when damaged or destroyed, (iii) the area over which the damage and destruction occurred, (iv) the extent of the damage and destruction, and (v) either of (A) the species composition of the stand of timber when the fire occurred, or (B) the biogeoclimatic zone, subzone and variant of the area over which the damage and destruction occurred and assigning the amount that the minister considers reasonable as the dollar value of the timber after taking into account the matters set out in subparagraphs (i) to (v), (c) other forest land resources is to be calculated is by multiplying the number of hectares of other forest land resources damaged or destroyed, (i) if in a protected area or an area that is the subject of an order under section 7, 8, 10, 12, 14 or 15 of the Government Actions Regulation, by $5 000, or (ii) if in any other area, by $1 000 and then assigning the product obtained as the dollar value for those other forest land resources, (d) grass land resources is to be calculated is by multiplying by $500 the number of hectares of grass land damaged or destroyed and then assigning the product obtained as the dollar value for those grass land resources, and (e) other property is to be calculated is by ascertaining the amount of the replacement value of that property and then assigning that amount as the dollar value for that property. [47] Section 31 of the Regulation sets out the manner in which fire control costs are calculated: Determination of government fire control costs 31 (1) For the purposes of section 25 (1) (a) and 27 (1) (b) of the Act, the manner in which the amount of the government's fire control costs in respect of a particular fire is to be calculated is (a) by ascertaining the sum of the following costs, expenditures and charges that are attributable to the fire: (i) hourly wages and overtime wages of responding employees, including payroll loading costs; (ii) distance charges for use of government and private vehicles; (iii) food, transportation and accommodation expenditures; (iv) costs for expendable supplies and materials consumed; (v) air tanker fuel costs and flight costs; (vi) helicopter fuel costs and flight costs; (vii) aircraft basing charges for contracted aircraft; (viii) retardant and other suppressant costs; (ix) rent on use of equipment; (x) replacement, repair or cleaning of damaged or used vehicles or equipment, directly resulting from the fire control; (xi) private goods and services contracted, hired, rented or purchased; (xii) investigation, research and analysis services related to (A) post-incident evaluation, (B) contingency plan reviews, and (C) other incident follow-up activities; (xiii) consulting and other professional charges; (xiv) rehabilitation and/or slope stabilization costs, and (b) by adding to the sum ascertained under paragraph (a) for overhead an amount equal to the greater of (i) $200, and (ii) 20% of the amount determined under paragraph (a) to arrive at the total dollar amount of the government's fire control costs for the fire. (2) The rates to be charged for the purposes of subsection (1) (a) are, (a) for wages, (i) the rates, if any, that (A) are applicable and in effect in the part of British Columbia in which the particular fire occurs, and (B) have been established as terms and conditions of employment by collective agreement or by another method, (ii) if the minister is satisfied that the person to be paid is (A) an employee who immediately before carrying out the compensable fire control was paid at greater rates of remuneration than the rates under subparagraph (i), or (B) an employer who carried out the compensable fire control through employees and was paying employees at greater rates of remuneration than the rates under subparagraph (i), the rates agreed to between the minister and the person, or (iii) in the absence of rates as described in subparagraph (i) or (ii), the rates set out in Schedule 4, and (b) for use of equipment, (i) the rates, if any, for that type of equipment that are set out in the Equipment Rental Rate Guide authorized by the government, as amended or reissued from time to time, (ii) if the minister is satisfied that the equipment supplier's costs for the equipment used in carrying out the fire control are at rates greater than those referred to in subparagraph (i), at rates agreed to between the minister and the supplier, or (iii) in the absence of rates as described in subparagraph (i) or (ii), reasonable rates to be approved by the minister. [48] Section 1 of the Regulation also defines certain key terms: "fire control cost" means a cost of the government for fire control activities that is recoverable under section 25 (1) (a) or 27 (1) (b) of the Act; "fire control" means an action to contain, extinguish or limit the spread of a fire; 3. Appeal to the Commission and to Court [49] Any person ordered to pay fire control costs under s. 27 of the Act can appeal the order to the Commission: Act, ss. 37(1), 39(1)(a). [50] Section 40.1 of the Act sets out the procedures for the appeal, making applicable the procedural guidance found in Part 8.1 of the Forest and Range Practices Act, S.B.C. 2002, c. 69 [FRP]. Section 140.2 of the FRP incorporates numerous provisions from the Administrative Tribunals Act, S.B.C. 2004, c. 45 [ATA]. Section 40.1 of the Act additionally makes s. 33 of the ATA applicable to appeals to the Commission. [51] The Commission has the authority to make decisions without deference to the original decision maker: Act, s. 41(1). Section 140.1 of the FRP confers on the Commission the power to hear appeals from the FRP and the Act in addition to the Forest Act, R.S.B.C. 1996, c. 157; the Private Managed Forest Land Act, S.B.C. 2003, c. 80; and, the Range Act, S.B.C. 2004, c. 71. [52] Under s. 11 of the ATA (which applies to the Commission pursuant to FRP, s. 140.2(d)), the Commission has the power to control its own processes, including the ability to make rules respecting practice and procedure. Commission hearings have an inquisitorial element and panel members have the authority to intervene, to examine witnesses, and to ask for further information: British Columbia, Forest Appeals Commission, Practice and Procedure Manual, amended April 2019 (Victoria: 1 July 2016) at 45-46, 49, 53; see also ATA, s. 38. [53] Section 140.6 of the FRP also stipulates that the Commission, in conducting its appeal, may do so by way of a new hearing (as was done in this case). I am informed that that is generally the default position. [54] Section 41(3) and (4) of the Act states that after the time to appeal to the Supreme Court passes, the minister can file in court a certified copy of the Commission's decision. Once filed, any orders made therein have the same force and effect as if they were orders of the Court. [55] Section 140.7(1) of the FRP creates the right to appeal a decision of the Commission to the Supreme Court on questions of law or jurisdiction. An appeal from this Court's decision lies to the Court of Appeal only with leave: s. 140.7(4). [56] Section 140.2 of the FRP makes applicable to the statutory appeal a number of ATA provisions regarding appointments (ATA, Part 2), practice and procedures (ATA, Part 4) and other matters. III. DEFINING THE ISSUES [57] The petition and application for judicial review were both filed in December 2020. [58] The parties agree that issues properly brought in the appeal (i.e., questions of laws or jurisdiction as per FRP, s. 140.7(1)) are subject to the correctness standard of review, while those brought in the petition for judicial review are subject to the reasonableness standard: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 16, 37 [Vavilov]. [59] However, with one exception, the parties disagree on the nature of the issues raised by CNR, resulting in a dispute about the applicable standard of review. A. The Parties' Positions [60] The parties agree on the resolution to one issue: CNR alleges the Commission committed a legal error and/or breached procedural fairness by reclassifying certain hectares--considered to be grassland in the Contravention Decision--as damaged forest land. Because neither party raised that issue nor sought that reclassification before the Commission, the Province has agreed to a form of order to resolve the matter. It is therefore unnecessary for me to address this issue. [61] CNR submits the following issues arise under the appeal because they raise questions of law. It submits the Commission erred: a) by determining that it did not have jurisdiction to review the Province's fire control decisions; b) by articulating and applying the incorrect test for reviewing the Province's fire control decisions; c) by ignoring or misconceiving the evidence before it, and by making factual findings in the absence of evidence; d) by awarding the prescribed value for a full hectare when not all resources within that hectare were damaged or destroyed; and, e) by concluding that the Province was entitled to recover its claimed "payroll loading costs". [62] CNR also raises the following issues under the judicial review: a) if the errors cited above in paragraphs 61(a)-(c) do not raise questions of law, it was unreasonable for the Commission to find CNR responsible for fire control costs and resources damaged by the Ignition Event. b) If the error cited above in paragraph 61(d) does not raise a question of law, it was unreasonable for the Commission to conclude compensation could be awarded for resources not visibly damaged or destroyed. [63] CNR also submits that if either of the two judicial review issues are remitted to the Commission (pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241), the Court should direct they be heard by a differently constituted panel. [64] The Province contends that with the exception of two issues, CNR has mischaracterized the alleged errors by improperly conflating questions of fact and questions of mixed fact and law with questions of law. It contends that if CNR's approach is accepted, it would substantially expand the scope of questions subject to a correctness review contrary to the spirit of Vavilov, where the Supreme Court of Canada intended to more clearly delineate and narrow the categories of issues subject to that standard. It also submits such an expansion would counter the clear legislative intent to limit appeals under the Act to questions of law and jurisdiction. [65] The Commission submits the Court must look beyond the parties' characterization of the issues and first determine whether CNR raises issues involving readily extricable legal questions. The Commission submits this should be done by assessing the questions in the context of the whole of the submissions made to the Commission and the resulting Decision. [66] Appropriately, the Commission does not take any position on whether the Decision was correct or reasonable. However, it raises another matter. [67] The other parties in this case consented to having the statutory appeal and judicial review heard together on the same record. The Commission notes that Vavilov does not answer the question of whether judicial review remains available when an issue falls outside the scope of a limited statutory right of appeal. Cases decided after Vavilov are divided on whether the statutory language in some restricted rights of appeal may preclude judicial review and, if judicial review is available, what procedure to follow: see e.g. Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161 at paras. 37-51, 107-118. [68] The Commission's submissions on this point were made in that context without conceding that it was appropriate to have the two proceedings heard together. That issue may need to be addressed in another case. [69] I agree the first task is to define the issues before me. B. Legal Principles [70] Because the court's task on a judicial review is different than on a statutory appeal, it is prudent to classify the errors before analyzing them to ensure the correct standard of review is applied. To do otherwise creates the risk that the court will subject issues to a higher level of scrutiny than is appropriate, thereby blurring the important distinction between the Court's role when acting as an appellate body (i.e. ensuring the correctness of an issue) and its supervisory role when engaged in a judicial review. [71] It is also helpful when considering the proper classification of issues to be mindful of the law regarding applying different standards of review. 1. Classification of Errors [72] The Supreme Court of Canada has provided guidance for classifying the nature of the issues before a tribunal: legal questions are questions about what the correct legal test is, factual questions are questions about what actually took place between the parties, and questions of mixed fact and law are questions about whether the facts satisfy the legal test: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 at para. 43 [Teal]. See also Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 35, 1997 CanLII 385 [Southam]. [73] The "key difference" between a question of law and a question of mixed fact and law is the question's degree of generality, or "precedential value": Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 51. As a challenged proposition's degree of generality nears "utter particularity" or "pure application", it approaches an "unqualified question of mixed law and fact": Southam at para. 37. [74] Where, precisely, the line is drawn between questions of law and questions of mixed fact and law turns on whether there is an extricable error of law: Housen v. Nikolaisen, 2002 SCC 33 at paras. 34, 37. In Teal, the majority opinion cautioned that due to the haziness of this distinction, reviewing courts must be careful not to inadvertently conflate the two types of issues: [45] Courts should, however, exercise caution in identifying extricable questions of law because mixed questions, by definition, involve aspects of law. The motivations for counsel to strategically frame a mixed question as a legal question -- for example, to gain jurisdiction in appeals from arbitration awards or a favourable standard of review in appeals from civil litigation judgments -- are transparent (Sattva, at para. 54; Southam, at para. 36). A narrow scope for extricable questions of law is consistent with finality in commercial arbitration and, more broadly, with deference to factual findings. Courts must be vigilant in distinguishing between a party alleging that a legal test may have been altered in the course of its application (an extricable question of law; Sattva, at para. 53), and a party alleging that a legal test, which was unaltered, should have, when applied, resulted in a different outcome (a mixed question). [75] Applying this distinction to an adjudicator's assessment of evidence, there are limited circumstances where a finding of fact or assessment of evidence may give rise to an extricable legal error. [76] For example, it is an error of law for an adjudicator to base the finding of a material fact on no evidence or irrelevant evidence: Aubrey v. Teck Highland Valley Copper Partnership, 2017 BCCA 144 at para. 22, citing (among others) J.M.H. at paras. 25-32; Murphy v. Saskatchewan Government Insurance, 2008 SKCA 57 at para. 5. [77] It is also an error of law for an adjudicator to fail to consider relevant evidence where: a) the omission is able to ground a "reasoned belief" on the part of the reviewing court that the adjudicator has forgotten, ignored, misapprehended, misconceived or otherwise completely failed to take this evidence into account; and, b) this omission has either: i. affected the adjudicator's conclusion; or, ii. excluded evidence whose consideration is required by law (e.g. the evidentiary elements of a balancing test). See Van de Perre v. Edwards, 2001 SCC 60 at para. 15; Shooters Sports Bar Inc. v. Alcohol and Gaming Commission, 238 O.A.C. 9 at paras. 38-39, 2008 CanLII 25052 (S.C.); Southam at paras. 41, 43; Pope & Talbot v. British Columbia, 2009 BCSC 1715 at para. 92. [78] While adjudicators are not required to mention every item of evidence or to detail the way in which each item was assessed, their "burden of explanation increases with the relevance of the evidence in question to the disputed facts": Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 53 at paras. 16-17, 1998 CanLII 8667; British Columbia (Minister of Citizens' Services) v. British Columbia (Information and Privacy Commissioner), 2012 BCSC 875 at para. 53. [79] In contrast to these legal errors, situations involving matters of mixed fact and law include where an adjudicator (Southam at paras. 41, 43): a) considers all required evidence but reaches the wrong conclusion; or, b) incorrectly assesses the weight assigned to evidence as required within a balancing test. [80] Preferring the evidence from one witness over another does not, on its own, represent a legal error: Housen at para. 46. Relatedly, it is neither an error nor unreasonable for a decision maker to simply give reasons for why they accept one witness's story, as these reasons are implicitly why they prefer it over the alternatives: Clark v. British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 487 at para. 28 [Clark]. 2. Applying the Standard of Review [81] The standard of review applicable to the questions properly falling within the scope of the appeal (i.e. questions of law or jurisdiction) is correctness (Vavilov at paras. 36-37). [82] When applying the correctness standard, the reviewing court should take the administrative decision maker's reasoning into account; however, while the court may find the reasoning persuasive and adopt it, it is ultimately empowered to come to its own conclusion on the question: Vavilov at para. 54. That said, to the extent the findings of law depend upon factual findings, the presumption of reasonableness for questions of fact requires that deference is shown to those factual findings: Vavilov at paras. 16-17, 37. [83] The parties agree that any issues found not to be errors of law--and thus correctly failing under the application for judicial review--will be subject to a reasonableness standard, including findings of fact, questions of mixed fact and law and exercises of discretion. [84] Although reasonableness is a robust form of review, courts must still respect the legislature's intention that the commission weigh the evidence and make decisions about the statutory regime: Vavilov at paras. 14, 82. [85] A reasonable decision is both internally and externally coherent, being "based on an internally coherent and rational chain of analysis and justified in relation to the facts and law that constrain the decision maker": Vavilov at para. 85. Accordingly, reasonableness review requires courts to conduct two interrelated, but ultimately distinct, analyses: para. 99. [86] First, the court must ask whether the decision bears the "hallmarks of reasonableness"--namely, justification, transparency, and intelligibility--such that its internal reasoning can be said to be "both rational and logical": Vavilov at paras. 99, 102. [87] Second, the decision must be justified in relation to the relevant factual and legal constraints. In Vavilov, the Court explained that assessment may include consideration of the following: a) the governing legislative scheme: paras. 108-110; b) other statutory or common law: paras. 111-114; c) principles of statutory interpretation: paras. 115-124; d) the evidence that was before the decision maker: para. 125-126; e) the submissions of the parties: para. 127-128; f) past practices and decisions of the decision maker: paras. 129-132; and, g) the impact of the decision on the affected individual: paras. 133-135. [88] A reviewing court must not decide the issue itself and then measure the decision maker's reasoning against its own. Instead, the focus is on the decision itself--courts must pay respectful attention to both the decision maker's reasoning process and the outcome: Vavilov para. 83. The decision must be read as a whole in the context of the relevant administrative regime and the record: Vavilov at paras. 89-96, 126. This approach gives effect to the legislature's intention to leave certain decisions to the administrative body in question: para. 82. [89] Reviewing courts must also remain "acutely aware" that administrative justice may look different from judicial justice, and due account must be taken of the decision maker's expertise. This means being respectful of the purposes and practical realities of the administrative regime, as the tribunal's approach may be reasonable given the consequences and operational impact of its decisions, even where it may at first seem counterintuitive to a court: Vavilov at paras. 92-93. [90] The starting point of reasonableness review is found in the principle of judicial restraint: Vavilov at para. 13. Administrative decisions are not to be measured "against a standard of perfection" (Vavilov at para. 91), and the court should not engage in "a line-by-line treasure hunt for error" (Vavilov at para. 102, citing Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 at para. 54). Administrative decision makers' reasons need not "include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred" (Vavilov at para. 91 citing Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16). [91] Accordingly, judicial intervention will be warranted only where the decision has sufficiently serious shortcomings such that it fails as a whole to justify the decision in question: para. 100. Absent exceptional circumstances, a court should not interfere with the decision maker's finding of fact or reassess evidence: Vavilov at para. 125. [92] The party challenging the decision bears the onus of demonstrating that it is unreasonable--it is not enough that the applicant's preferred outcome, rationale or interpretation is itself reasonable or even "more reasonable" than the decision being challenged: Vavilov at para. 100. C. Analysis: Correct Classification of Errors [93] CNR's position is that most of the issues it has raised are questions of law falling within the ambit of the statutory appeal and thus subject to the correctness standard. The Province's position is that most issues identified by CNR are questions of mixed fact and law that can be raised only in the application for judicial review. The Province does agree that if properly raised, issues of the Commission's jurisdiction or the proper interpretation of legislation are questions of law. [94] I will now classify errors alleged by CNR to determine whether they properly fall within the appeal or the application for judicial review. 1. Lack of Jurisdiction [95] CNR submits the Commission incorrectly determined that it lacked jurisdiction to "consider the Province's fire control decisions", causing it to fail to properly consider and apply the legal test for s. 27 of the Act. [96] The parties agree that if an error of jurisdiction is identified, it is an error of law that must be assessed against the standard of correctness. 2. Articulating and Applying the Incorrect Test [97] CNR's position is that s. 27 of the Act requires the Commission to both undertake a causation analysis to determine if fire control costs were incurred for a fire that resulted from a contravention, and a consideration of whether the costs incurred fall within the ambit of "fire control" as it is defined in s. 1(2) of the Regulation. [98] Thus, while the Province has discretion in how it controls a wildfire, CNR submitted to the Commission that it was entitled to review "how the Wildfire Service went about controlling the Fire, and the Province must prove that measures employed to control a wildfire must be necessary 'to contain, extinguish or limit' its spread". CNR contended that s. 27 enables the Province "to recover only appropriate costs arising from fire control efforts, and those costs should be restricted to what was reasonably necessary in the circumstances--while acknowledging the government's ability to recover fire control costs incurred 'directly or indirectly from the contravention'". [99] CNR challenges the Commission's interpretation of its governing legislation. This raises a legal issue that properly falls within the appeal because it is an issue of statutory interpretation. The Province agrees this is a question of law. 3. Ignoring Evidence, Making Findings in the Absence of Evidence or Considering Irrelevant Evidence [100] CNR alleges the Commission made numerous errors involving the evidence, each of which rise to the level of being errors of law. The interplay between a tribunal's treatment of evidence and the guiding statute is often a question of mixed fact and law because it invites a consideration of whether the facts satisfy the legal test; however, in some instances, an adjudicator's handling of the evidence will give rise to an extricable question of pure law--and courts have recognized that there can be difficulty distinguishing between the two (see above paragraph 74). [101] CNR submits the Commission's evidentiary errors led it to improperly award amounts to the Province for the following items: a) the costs of the Ignition Event; b) any amount for the resources damaged or destroyed in the area that burned as a result of the Ignition Event (the "Ignition Burn Area"); and, c) any fire control costs incurred in relation to the Ignition Burn Area after June 17. [102] With regard to the Ignition Event, CNR alleges the Commission erred by: a) ignoring a critical admission by one of the Province's witnesses that was consistent with CNR's expert report; b) failing to note the absence of evidence that areas burned by the Ignition Event would not have burned otherwise; c) misconceiving undisputed evidence that the Ignition Evidence increased the total burned area by about 600 hectares; d) failing to acknowledge that the Ignition Event could not be suppressed; e) failing to properly assess the significance of evidence noting that the risk of the Fire spreading to the south was minimal when accepting the purpose of the ignition operation was to limit the southerly spread of the Fire; f) making contradictory findings about observed fire activity on the Fire's southern flank in the absence of evidence; and, g) misconceiving the proper conclusion to be drawn from Prometheus, a wildfire growth modelling simulator used to predict the Fire's behaviour. [103] CNR submits the evidentiary errors rise to the level of being errors of law because they involve findings made in the absence of evidence or in reliance upon irrelevant evidence. It also alleges material evidence supportive of its case was ignored. [104] CNR's submissions on all of these points are inextricably connected to and reliant on its version of the correct interpretation of s. 27 of the Act. Because CNR construes s. 27 (and in the case of payroll loading costs, s. 31 of the Regulation) more narrowly than the Province, it submits the Commission erred by failing to mention or appropriately emphasize evidence that favours CNR's position. The Commission did not accept CNR's position as to the scope of s. 27 of the Act or s. 31 of the Regulation; its treatment of the evidence was therefore more consistent with the Province's position. [105] By way of illustration, CNR submits the Commission "ignored" what it says was a critical admission by Tim Ewart. Mr. Ewart agreed that it was "reasonable to attribute that burn up [illustrated on a diagram] as coming from the ignition and not from the original fire itself". [106] Because CNR submits the Ignition Event constitutes an intervening event unconnected to its contravention, CNR's position is that the Province cannot recover any costs related to the Ignition Event nor be compensated for any resources damaged in the Ignition Burn Area. CNR submits Mr. Ewart's "admission" was critical to its position and the Commission's failure to mention it was an error of law. [107] There are two flaws with this reasoning. The first is that CNR has essentially manufactured a dispute in the evidence which does not exist. The Province does not deny that there are costs that could be attributed only to the Ignition Event. However, its position is that the Ignition Event was a "fire control activity" employed to combat the Fire stemming from CNR's contravention, so those costs can be recovered under s. 27. The Commission agreed with the Province not because it mishandled or ignored evidence, but because it did not accept CNR's interpretation of the legislation. [108] Second, CNR has attempted to bifurcate its primary position--that the Commission erred in its interpretation of s. 27--into discrete errors of law centred around individual pieces or bodies of evidence; however, these divisions are artificial. As noted, it was not controversial that one could delineate the costs attributable to the Ignition Event and what resources were damaged or destroyed in the Ignition Burn Area. The point of disagreement is whether either or both of those were directly or indirectly the result of CNR's contravention. [109] In reality, CNR's example of what it says was the ignored evidence (Tim Ewart's "admission") raises two separate issues that have different classifications: a) The first issue is determining what is the correct legal test for s. 27, which is a question of law. Resolving this issue necessarily entails asking how one approaches the determination of which costs of fire control were "for a fire that resulted, directly or indirectly" from CNR's contravention. It also requires a consideration of how to assess which resources were damaged or destroyed as a result, directly or indirectly, of the contravention. b) The second issue requires a determination of whether the Commission correctly applied the legal test for s. 27 to the evidence before it, which is a question of mixed fact and law. [110] There is the possibility that if the Commission erred in its articulation of the legal test, this may have led to material errors in its consideration of the evidence; however, if its interpretation of the legal test was correct, then it is less likely any errors in the evidence amount to pure errors of law. 4. Awarding the Prescribed Value for each Full Hectare [111] CNR submits the Commission erred in concluding the Province could recover amounts for resources that were not visibly damaged. CNR alleges the Commission ignored and/or misconceived undisputed evidence, which led it to misinterpret the legislation, raising a question of law. [112] CNR suggests the Commission contradicted itself by first accepting that it was appropriate to measure damages to Crown resources by noting what was visibly damaged, but later stating the Fire "will likely have caused damage wherever it burned, notwithstanding that it may not have visibly damaged (let alone destroyed) all of the trees within a given hectare". [113] CNR's argument rests on its interpretation of one sentence taken out of context. The Commission did not contradict itself on the issue, and understood that an amount could only be awarded for visible damage. However, the Commission accepted evidence that the forest's understory was completely burned, even if not all trees were visibly damaged. This does not constitute an error of law, nor can it fairly be said that the Commission ignored evidence (full analysis of this issue is below, at paragraphs 192-208). 5. Payroll Loading Costs [114] CNR submits the Province is only entitled to recover what it actually spent on wages and overtime, and the Commission erred by awarding the Province an amount for an estimate of those costs. The parties came to an agreed statement of facts relating to this issue. [115] The Province submits CNR's position does not reflect the wording of the provision. Section 31(1)(a) of the Regulation states that fire control costs are to be calculated "by ascertaining" the sum of a number of items including payroll loading costs. [116] This issue does raise the correct interpretation of the Regulation. As such it is a question of law that arises in the appeal. IV. ANALYSIS OF ISSUES ARISING ON APPEAL [117] Given my conclusions about the classification of errors, I find the following issues arise on this appeal: a) Does CNR raise an issue regarding the Commission's jurisdiction? b) What is the correct legal test for s. 27 of the Act? c) What is the correct legal test for calculating payroll loading costs pursuant to s. 31(1) of the Regulation? A. Jurisdiction [118] The primary issue in the appeal and the judicial review is the Commission's interpretation of s. 27 of the Act. CNR alleges the Commission interpreted that provision too narrowly, thus improperly limiting the scope of the appeal before it. [119] CNR attempts to extract two separate issues from the Commission's approach to s. 27, arguing that the Commission both made a jurisdictional error and misinterpreted the provision. While both errors do raise the issue of the proper interpretation of s. 27 (which is a question of law) and could hypothetically be examined together, I am not persuaded that CNR has actually identified a jurisdictional error. Instead, I am of the view that the supposed "error" only arises because CNR misstates the Commission's articulation of its jurisdiction in the Decision. [120] CNR alleges that the Commission erred when it determined that it lacked jurisdiction to "consider" the Province's fire control decisions; however, the Commission never actually concluded as such. Rather, the Commission appropriately stated its review is defined by the applicable statutory language, providing an accurate and clear articulation of its jurisdiction: [120] The Panel finds that sections 27(1)(b) and (c) of the Act, respectively, provide the Commission with the jurisdiction to consider the amount of the government's costs of fire control "that resulted, directly or indirectly, from the contravention", and the dollar value of the specified Crown resources "damaged or destroyed as a result, directly or indirectly, of the contravention". Those sections require those amounts to be calculated "in the prescribed manner", which is found in sections 30 and 31 of the Regulation. In an appeal of an order made under section 27 of the Act, the Commission may consider the meaning of the words in section 27 of the Act and sections 30 and 31 of the Regulation, and whether the amounts assessed in the appealed order fit within the scope of those words. [121] For example, the Commission may consider whether an amount for the government's fire control costs is within the scope of "fire control" as defined in section 1(2) of the Regulation. The Commission may also consider whether the fire control costs "resulted, directly or indirectly, from the contravention" as stated in section 27(1)(b) of the Act. Similarly, an appeal involving an amount for damaged or destroyed Crown resources may relate to questions about the meaning of "damaged" and "destroyed", or whether the contravention was the direct or indirect cause of the damage or destruction. Further, there may be situations where the Commission is asked to consider whether the amounts in an order should be apportioned when two wildfires merge but only one of those fires was caused by a contravention. [Emphasis added.] [121] CNR also points to the following portion of the Decision to ground the argument that the Commission's purported jurisdictional error stems from the fact it misapprehended CNR's position: [122] However, the Commission's role is not to critique, with the benefit of hindsight, whether the Wildfire Service could have controlled a particular wildfire in a different manner that may have reduced the burnt area or resulted in lower associated fire control costs. Although it is an expert tribunal with broad jurisdiction to decide appeals under the Act, the Commission is only able to consider the particular decision under appeal. Making an order under section 27 of the Act involves determining the quantum of the relevant costs and Crown resource values in accordance with the Act and the Regulation. The authority to make an order under section 27 does not include reviewing the Wildfire Service's strategies for fighting a particular wildfire to determine, in retrospect, if a wildfire could have been contained to a smaller area, or extinguished sooner, or by deploying available resources differently. The scope of the Commission's inquiry in an appeal of such an order is similarly limited. [Emphasis added.] [122] CNR submits that the underlined portions demonstrate the Commission inappropriately limited its review because it incorrectly believed CNR had asked the Commission to "critique" or assess the correctness of the Province's conduct in fighting the fire, leading it to conclude "it lacked jurisdiction to perform a critique that no one asked it to perform". [123] CNR's position that it did not ask the Commission to critique the Province's fire control decisions is difficult to reconcile with the scope and tenor of its submissions in this Court as well as the evidence and arguments raised before the Commission. Specifically, CNR relied on the evidence of Gregory Guyan, who testified as an expert in wildfire management and suppression strategies, systems and tactics. CNR asked Mr. Guyan to opine on the following: a) Could the Province have extinguished the Fire sooner using reasonable fire control strategies and tactics? b) Could the Province have extinguished the fire sooner than it was? c) Assuming the Fire was extinguished sooner than it was, what area would have been damaged or destroyed by the Fire? [124] Regardless of whether his answers to these questions are characterized as a critique, a review or an evaluation, it seems clear that CNR was attempting to use Mr. Guyan's testimony to raise doubts regarding the Province's chosen approach to controlling the Fire, thereby inviting the Commission to embark on a line of inquiry that was outside the scope of its review. In my view, the Commission did not mischaracterize CNR's position. [125] For that reason, I do not agree with CNR that the Commission concluded it lacked jurisdiction to consider or review the Province's fire control decisions. Accordingly, I conclude that there is no true jurisdictional issue raised by CNR's submissions. B. Correct Interpretation of s. 27 of the Act [126] As noted, the critical issue that both parties agree is a question of law is whether the Commission's interpretation of s. 27 was correct. [127] An adjudicator's interpretation of a statute must be guided by two seminal principles: a) "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, 1998 CanLII 837 [Rizzo]. b) "Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects": Interpretation Act, R.S.B.C. 1996, c. 238, s. 8. [128] CNR argues that the Province must demonstrate that each of its fire control actions were both necessary and effective in containing, extinguishing or limiting the spread of the Fire. The following quote from its submissions summarizes its position: If the Province's actions did not contain, extinguish or limit the spread of a fire, the resulting costs and losses will not be recoverable. For example, if an ignition operation burns more land than necessary to contain a fire, the Province cannot recover for the unnecessary burning. [It does not] matter whether the Province reasonably believed in the moment that the ignition operation was necessary. The definition of "fire control" does not include any subjective elements as to what the Province believed, understood, or forecast. [129] CNR's position is that s. 27 requires a causation analysis, such that no amount can be payable for costs or damages to resources resulting from a fire caused by anything other than a contravention. Accordingly, in light of Mr. Guyan's opinion that the Ignition Event should never have taken place, CNR submits the controlled burn was essentially an intervening event, such that CNR's contravention was not directly or indirectly linked to the fire control costs and damages stemming from this controlled burn. CNR should thus be insulated from these amounts, and the monies owing reduced accordingly. [130] The Province submits CNR's position does not accord with the nature and purpose of the legislative scheme. Its position is that the scheme prioritizes the protection of safety, infrastructure and the environment over minimizing the potential costs to the person who started a wildfire. [131] The Province's arguments on this point find some support in British Columbia v. Canadian National Railway, 2012 BCSC 1856, where Justice Armstrong commented as follows regarding the legislation's purpose after reviewing the Commission's approach to s. 27 of the Act and s. 30 of the Regulation: [51] I have concluded that the legislation was intended to protect the Crown and other parties from the necessity of engaging in legal action through the courts to obtain compensation for its losses. The legislature established this mechanism for determining the Crown's losses in the prescribed manner by engaging the Commission's specialized expertise to achieve a timely, efficient and fair resolution of this type of claim. The process avoids the burdens of delay and cost otherwise involved in pursuing claims through the courts. It is my view that the legislature has, by the language used in the Forest Act, abrogated the application of common law principles regarding damage recovery for Crown timber. [132] While the case has important differences from this case (it was decided in a different factual context and focussed on certain provisions in the Forest Act rather than the Wildfire Act), the causation analysis that CNR submits is required for calculating damages under s. 27 runs afoul of the legislation's goal of efficiency. [133] In contrast, CNR grounds its argument that s. 27 requires a causation analysis in the provision's plain language, placing great weight on the requirement that fire control costs and damages associated with a fire must have resulted "directly or indirectly" from a contravention to be compensable: Act, s. 27(1)(b) and (c). In CNR's view, there appear to be very few instances where a contravention can be said to have directly resulted in fire control costs, and even fewer that "directly result in damage or destruction to resources". [134] The imposition of a causation analysis is beneficial to CNR's position, as it is of the view that none of its contraventions--namely, carrying out work at a time and in a manner that did not reasonably prevent fires from starting, failing to determine the appropriate fire danger class, and failing to have adequate firefighting tools on hand--could directly result in fire control costs or damages to resources. Thus, the more stringent s. 27's causation requirement, the greater the chance CNR can avoid paying for the costs and damages associated with the Ignition Event. [135] In my view, CNR's interpretation of s. 27 is overly narrow and runs afoul of the modern approach to statutory interpretation. First, CNR's proposed interpretation does not accord with a plain reading of the legislation. Indeed, CNR's position strains the language of s. 27 to its breaking point. For example, CNR contends that "a fire is not even a precondition to the Province's recovery of damaged resources" because the damaged or destroyed resources must result directly or indirectly from a contravention. With respect, that position is untenable. Section 1(2) of the Regulation defines "fire control" as "an action to contain, extinguish or limit the spread of a fire" (emphasis added)--so, by definition, there can be no costs of "fire control" in the absence of a fire. [136] Second, it does not account for the nature and purpose of the relevant legislation. The Province submits CNR's approach would result in the Province having an obligation when attempting to recover fire control costs and fire damages to call the majority of firefighters involved to show every fire control action taken was necessary and effective. As a result of CNR's conception of s. 27's causation requirement, if "winds shift and a fire control line is burned over, or the retardant missed the intended target, the Province would not be able to recover" the associated costs. I agree with the Province's submission, and note that such an approach directly clashes with the legislative purpose of efficiency that was identified in British Columbia at para. 51. [137] Third, there are indications that CNR's position conflicts with the presumed intention of the Legislature. The Province was able to point to instances, both within the Act and in other similar legislation, where the Legislature chose to impose a higher standard for the Province to meet for recovery of costs. For example, s. 25(3) of the Act requires the Minister to first determine if individuals with certain proprietary interests "caused or contributed to the fire or the spread of the fire" before allowing the recovery of costs. Similarly, s. 88(4) of the Environmental Management Act, S.B.C. 2003, c. 53, requires a court to reduce or extinguish amounts recoverable in connection to an immediate response to an environmental emergency where expenses incurred were excessive or unnecessary. Both provisions indicate the Legislature was alive to the possibility of including causation, necessity and/or effectiveness in the legal test for s. 27 of the Act; however, it did not, and this silence is significant. [138] Finally, even if I were to accept CNR's position regarding the causation analysis it says is required in applying s. 27, this argument cannot be maintained on the basis of the evidence. There was no evidence that absent the fire started by CNR, the Province had planned or intended to burn the Ignition Burn Area for any reason that summer. In other words, the Ignition Event and its associated costs and damages were an indirect result of CNR's contravention in the sense that, but for CNR's contravention, the Fire would likely not have spread to the point that such drastic fire control measures were required. [139] In conclusion, CNR's approach relies on a narrow interpretation of s. 27 that minimizes the facts of this case. CNR does not and has not disputed that it engaged in rail grinding activities on a hot, dry, windy day, when the fire danger class was extreme. When viewed in that context, CNR's submission about the need for a strict causation analysis does not accord with the plain language of s. 27, its surrounding scheme, the nature and purpose of the legislation, or the intention of the Legislature. [140] The Commission's approach to the legislation was correct because it reflects the words of the relevant sections and is consistent with the Act as a whole, and the legislative scheme. The Commission clearly articulated that the costs awarded must fall within the four corners of the legislation, finding that it had jurisdiction to address issues including: a) whether an amount claimed by the government properly fell within the scope of fire control costs; b) whether the fire control costs claimed "resulted directly or indirectly from the contravention"; and, c) the meaning in s. 27(1)(c) of "damaged" and "destroyed", and whether damage or destruction within the meaning of the provision was caused directly or indirectly by CNR's contraventions. [141] For these reasons, I find the Commission's interpretation of s. 27 correct, and this ground of appeal is dismissed. [142] Further, I find the above reasoning disposes of the issue (to the extent it is raised) in the petition for judicial review, regardless of the applicable standard of review, because "the interplay of text, context and purpose leaves room for a single reasonable interpretation of" s. 27: Vavilov at para. 124. C. Payroll Loading Costs [143] CNR submits the Commission erred by relying on estimates or average costs to determine what the Province could recover for payroll loading costs. [144] The parties submitted an agreed statement of facts (later amended by consent) ("ASF") regarding payroll loading costs. In the ASF, the parties confirmed that an overhead amount of 20 percent is applied to the total sum of costs falling under s. 31(1)(a). [145] The Fire Manager ordered CNR to pay $344,694.45 as payroll loading costs. The sum of the payroll loading costs plus the 20 percent overhead amount is $413,633.34. [146] The following extracts from the ASF are also relevant: 5. The Province has calculated "payroll loading costs" attributable to [the Fire] by multiplying the total wages and overtime wages of responding employees attributable to [the Fire] by the Province's benefits chargeback rate for the relevant fiscal year (2016) of 24.8%. 6. The benefits chargeback rate covers expenses such as employee pension, EI, CPP, extended health, dental, WorkSafe BC, and Medical Services Plan costs for the Province's employees. 7. The benefits chargeback rate is set each year by Treasury Board by dividing the estimated total benefits cost to the Province (of all the Province's employees) by the estimated wages and salaries paid by the Province (for all of its employees). 8. The Province's various organizational units, including the BC Wildfire Service, are charged amounts equal to the wages paid to their employees plus the benefits chargeback rate amount. This occurs automatically through the Province's payroll and central accounting system. 9. The Province cannot determine the actual payroll loading costs for any specific employee (as paid by central government). For example, an employee paid $1,000 in wages for [the Fire] may or may not have cost the Province $248 in payroll loading costs. [147] In the Decision, the Commission summarized the main points from the ASF before laying out the parties' positions. It then analyzed the issue as follows: [228] The parties did not provide evidence about the Province's method for calculating payroll loading costs in 2005 when the Regulation came into force. Having no evidence of what the accounting scheme was in 2005, the Panel must look to the wording of the Regulation, which provides "the prescribed manner" for calculating fire control costs for the purposes of section 27 of the Act. Nothing in the Regulation ties the phrase "payroll loading costs" to the term "benefit chargeback rate", however. [229] The Panel then considered whether the Province is not entitled to reimbursement for payroll loading costs that cannot be precisely calculated for the employees who responded to the Fire. [230] The Panel is guided by section 8 of the Interpretation Act, which states that "Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects." The Panel is also guided by the findings in Rizzo, supra, regarding statutory interpretation. [231] With those principles in mind, the Panel finds that CN's argument does not give effect to the objectives of section 31(1)(a) of the Regulation; namely, the inclusion of payroll loading costs as an integral part of "wages" within the prescribed manner of calculating the government's fire control costs. CN's interpretation would frustrate the legislative intent rather than giving "fair, large and liberal interpretation" to the wording and intent of section 31(1)(a). [232] The Regulation is clear that some amount is to be billed for payroll loading costs as part of the "hourly wages and overtime wages of responding employees", and the Province has discretion to choose a method for determining the rates charged for "wages", which includes payroll loading costs. With the only evidence of that amount being Treasury Board's determination of the benefit chargeback rate charged to the Wildfire Service for its responding employees' hourly wages, and no evidence on how the Panel might calculate a different amount for payroll loading costs, the Panel finds that the benefit chargeback rate should be used. Accordingly, the Panel confirms the Province's amount for payroll loading costs as set out in the Amended ASF. [148] CNR submits the Province was required to prove its actual out-of-pocket costs for payroll loading before it could claim them under s. 31(1)(a)(i) of the Regulation. [149] The Province submits examining the wording and structure of s. 31 of the Regulation reveals no error in the Commission's analysis or conclusion on this issue. It argues that CNR's position is inconsistent with the relevant statutory language. I agree with the Province's position. [150] While the entirety of s. 31 of the Regulation is contained above in paragraph 47, for convenience I reproduce here the portions s. 31(1) directly relevant to this issue: 31 (1) For the purposes of section 25 (1) (a) and 27 (1) (b) of the Act, the manner in which the amount of the government's fire control costs in respect of a particular fire is to be calculated is (a) by ascertaining the sum of the following costs, expenditures and charges that are attributable to the fire: (i) hourly wages and overtime wages of responding employees, including payroll loading costs; , and (b) by adding to the sum ascertained under paragraph (a) for overhead an amount equal to the greater of (i) $200, and (ii) 20% of the amount determined under paragraph (a) to arrive at the total dollar amount of the government's fire control costs for the fire. [Emphasis added.] [151] The underlined portions all refer to assessing some aspect of the fire control costs, but the phrases "is to be calculated", "by ascertaining", "by adding to the sum ascertained" and "the amount determined" have different meanings that are relevant to how the section is interpreted. [152] It is important to approach the section in a contextual way, which means paying careful attention to the words in light of both the legislative scheme and the structure of the section. Section 31 stipulates how fire control costs will be calculated. A calculation is a purely mathematical operation; there is no discretion as to how it is done. The same is true for the wording in section 31(1)(b), which requires an amount for overhead to be "added" to the amount of costs determined under s. 31(1)(a). Again, addition is a purely mathematical operation. [153] This differs from the wording used to describe fire control costs. The opening words of section 31(1)(a) refer to the sum of fire control costs being "ascertained". This is repeated in section 31(1)(b): overhead costs are added to the sum of fire control costs that was "ascertained" under section 31(1)(a). Finally, section 31(1)(b)(ii) refers to fire control costs as being "determined". [154] There is a difference between ascertaining or determining a sum, and calculating it. The Province submits that the use of the words "ascertain" and "determine" permits the decision maker to conclude what those costs are on a balance of probabilities, before performing the mathematical exercise of summing them, and then adding to that sum the prescribed overhead cost. [155] This view is supported by McStravick v. Metzler, 2012 BCSC 1685. The issue in McStravick was the addition as a defendant of a person who was potentially the unknown owner or driver of a vehicle involved in a motor vehicle accident. The relevant legislation stated that if the identity of the unknown person was "ascertained" before judgment, that person could be added as a defendant notwithstanding the expiry of a limitation period. It was argued that the degree of proof required by the word "ascertained" bordered on being a "certainty" based on the word's dictionary definition. The court disagreed: [67] "Ascertained" in this context means something akin to "identified", and it requires proof on the ordinary civil standard that the person alleged to have been the cause of an accident has been sufficiently identified that a substitution order should be made. [156] I also note that CNR agreed that the "Province cannot determine the actual payroll loading cost for any specific employee". Despite this, it insists the legislation requires the Province to prove its actual costs. Following CNR's logic, payroll loading costs could never be recovered because the actual out-of-pocket costs can never be determined. [157] CNR's interpretation of s. 31 must ultimately be rejected as it violates the "well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences": Rizzo at para. 27. One must assume the drafters of the Regulation were aware of the facts contained in the ASF, including the Province's inability to calculate actual payroll loading costs. Thus, CNR's position necessarily implies that the drafters included payroll loading costs in fire control costs despite knowing they could never be established to the requisite level of proof, making the phrase "including payroll loading costs" in s. 31(1)(a)(i) entirely superfluous--an absurd outcome that the court ought to avoid. [158] For these reasons, I find the Commission was correct in its interpretation of s. 31(1) of the Regulation. V. ANALYSIS OF ISSUES ARISING ON JUDICIAL REVIEW [159] As noted, the Commission pointed to some judicial commentary that suggests judicial review may be unavailable where a limited statutory appeal exists: e.g. Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161 at paras. 40-67, Near J.A. However, the parties all agreed to a combined hearing in this case without prejudice to any party's position in future as to the availability and procedure for a petition for judicial review. [160] I have not accepted CNR's characterization of all the issues as being questions of law. Thus, I turn to its alternative position, which it asserts can be brought by judicial review. CNR submits that it was unreasonable for the Commission: a) to determine that it did not have jurisdiction to review the Province's fire control decisions; b) to articulate and apply the incorrect test for reviewing the Province's fire control decisions; c) to ignore or misconceive the evidence, and to make factual findings in the absence of evidence; d) to find CNR responsible for fire control costs and resources damaged by the Ignition Event; and, e) to conclude compensation could be awarded for resources not visibly damaged or destroyed. [161] The first three of these issues have already been dealt with. For one, I have already concluded that CNR has miscast as jurisdictional its challenge to the Commission's interpretation of s. 27, which eliminates the first issue. I have also concluded the Commission's interpretation of s. 27 was the only reasonable interpretation possible, eliminating most of the second question. Finally, I determined that CNR's position that the Commission ignored or misconstrued evidence leading to legal errors cannot be sustained. In part, I found CNR's submissions failed to fairly characterize the Decision; also, its submissions were entirely dependent on its insistence that a causation analysis was required, which I have not accepted. [162] As a result, the only issues that remain are whether the Commission's application (as opposed to its interpretation) of s. 27 was unreasonable with regard to: a) including those costs arising from the Ignition Event in fire control costs and damage to resources; and, b) including resources that were not visibly damaged or destroyed in the assessment of damages. [163] In summary, I do not find the Commission's application of the test for s. 27 to the facts before it was unreasonable. As I stated at the outset, CNR's identification of errors in the Commission's treatment of the evidence is inextricably tied to its interpretation of s. 27, which I have rejected. Despite exhaustive submissions on these evidentiary points, CNR's position is fairly simple and easily answered. A. Fire Control Costs [164] With regard to the Ignition Event, CNR argues the Commission's conclusion was unreasonable. Its submissions in support of that point rest almost entirely on the following two propositions: (i) the Commission "failed to properly weigh conflicting evidence about the execution" of the Ignition Event, and (ii) the Commission ignored evidence contrary to its conclusions. [165] CNR's submissions are grounded in its view that the Province was required to prove the Ignition Event was necessary, but failed to do so meaning no costs or damages attributable to it should have been included in the award. CNR's submissions repeat to a large degree points I have already addressed in the discussion of whether the Commission made a legal error in its interpretation of s. 27 (paragraphs 126-142) and I adopt my analysis and conclusions on that issue here. [166] Sprinkled throughout CNR's submissions are allegations that the Commission "preferred" certain evidence or failed to mention individual pieces of evidence. At times, CNR explicitly challenges the Commission's weighing of evidence. [167] Given my finding that the Commission's interpretation of s. 27 was both correct and the only reasonable interpretation of the provision, I find CNR's challenges to the Commission's handling of evidence require a degree and type of scrutiny that is incompatible with the approach to judicial review described in Vavilov. In essence, all of CNR's submissions on reasonableness require the Court to step into the place of the Commission, which would be contrary to its task in a judicial review. [168] CNR's argument that the Commission's analysis and/or conclusions were unreasonable in light of the evidence rests primarily on the following grounds, whether viewed cumulatively or independently. CNR submits the Commission: a) ignored a critical admission by the Province's witness, Mr. Ewart; b) failed to refer to evidence that the Ignition Burn Area would not have been damaged absent the Ignition Event; c) misconceived evidence that the Ignition Event increased the total area burned by the Fire; d) ignored evidence that the fire caused by the Ignition Event "could not be suppressed"; e) misconstrued or ignored evidence that the Ignition Event was unnecessary because the Fire was not spreading south and the risk of it doing so was minor by, among other things: i. making "contrary factual findings in the absence of evidence"; ii. relying on inadmissible opinion evidence; iii. ignoring a prediction by the Prometheus wildfire growth modelling simulator that the Fire would spread to the north and northwest rather than the south; and, iv. ignoring testimony that only a narrow strip of land needed to be burned to prevent southern spread, rather than the greater area burned by the Ignition Operation. [169] I have already noted that I do not accept CNR's submission about the Commission's treatment of Mr. Ewart's evidence because it was not an "admission" in light of the (correct) test for s. 27 applied by the Commission (paragraphs 105 - 110). In any event, a tribunal is not required to mention every piece of evidence before it: BC Minister of Citizens' Services at para. 53. Nor does lack of reference necessarily mean evidence was ignored: Clark at para. 28. This disposes of the point raised at paragraph 168(a). [170] My reasoning regarding Mr. Ewart's testimony applies equally to points raised at paragraphs 168(b), (c) and (d). [171] With regard to paragraph 168(e) (the alleged errors about the direction of the Fire's spread), CNR's submissions require a thorough dissection of the evidence. [172] For example, CNR suggests the Commission made a "contrary factual [finding] in the absence of evidence" because it accepted without corroboration Mr. Rennick's testimony that he observed "creeping" spot fires and increased fire activity beyond the Fire's southern perimeter between June 13 and 15, 2015. CNR points out that there were no photographs or notes about those observations. Thus, CNR submits that the Commission's acceptance of that witness's testimony is an error because it lacks corroboration in the face of what CNR says is contrary evidence. [173] There are three flaws with this argument. [174] First, I do not agree that there was evidence "contrary" to Mr. Rennick's observations. Contrary evidence would be testimony that a witness observed no spot fires or fire activity at the same time and place as Mr. Rennick's observations. No one pointed to such evidence in the record. [175] Second, CNR bases its position largely on the Commission's "acceptance" of Mr. Rennick's evidence. The suggestion that the Commission should have downplayed or rejected Mr. Rennick's evidence because of a lack of corroborating documentary evidence cannot amount to an error. If a decision maker accepts a witness is credible and reliable, testimony about the witness's observations is not weakened solely because there are no documents to record or corroborate those observations. Furthermore, a tribunal's assessment of credibility is entitled to a significant degree of deference: Lemieux v. British Columbia (Superintendent of Motor Vehicles), 2019 BCCA 230 at paras. 102 and 119. [176] Third, and most critically, CNR has unjustifiably simplified the Commission's treatment of evidence on the issue. CNR points to other (not contrary) pieces of evidence on which it relies to submit that the risk the Fire would spread southwards was minor. [177] I realize CNR's position is based on a global assessment of the Commission's treatment of evidence that it claims led to an unreasonable decision. Nevertheless, underlying all those submissions is CNR's position that s. 27 of the Act dictates no costs attributable to the Ignition Event can be recovered by the Province because of the absence of a causal link to CNR's admitted contraventions. If that interpretation was accepted, then delineating the fire control costs and damaged resources attributable to that event would have been a critical task for the Commission. Because I have rejected CNR's position, that delineation is unnecessary. [178] What is left is the argument--implicit in CNR's contention that the Ignition Event was unnecessary--that the Ignition Event should not have been conducted at all. Although CNR does not say this explicitly, the position is the inevitable result of its submissions. [179] I agree with the Province that all of CNR's allegations that the Commission misconstrued, failed to weigh properly and/or ignored evidence would only be relevant if CNR's interpretation of s. 27 was accepted. I made this point when discussing the test for s. 27 (paragraphs 126-142and it applies with even more force in the consideration of CNR's alternative submissions supporting its position that the Decision was unreasonable. [180] In sum, despite its extensive submissions, CNR's position is, at its core, simply a challenge to the Commission's weighing of the evidence about the direction of the Fire. These matters are not a matter for a court conducting reasonableness review as "it is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings": Vavilov at para. 125. [181] I find the preceding analysis and conclusion applies to each of the points addressed by CNR cited above at paragraph 168. B. Damage to Resources [182] CNR submits the Commission's inclusion of resources that were not visibly damaged or destroyed in the assessment of damages was unreasonable because it contradicted itself and misapprehended the evidence in its conclusions regarding how damaged or destroyed resources should be identified. It submits areas that were only incidentally damaged should not be considered "damaged" under the Act. CNR's position is that the Province cannot recover any amount for damaged or destroyed resources unless it proves by visual evidence that the entire hectare was damaged or destroyed. [183] Before analyzing those submissions, it is useful to review the applicable statutory language and summarize the Commission's treatment of this issue. 1. Section 30 of the Regulation [184] Section 30 of the Regulation provides the only guidance on how to determine the amount that should be awarded for damage to forest resources. Section 30(c), which I reproduce here for convenience, is pertinent: Determination of damages 30 For the purposes of section 25 (1) (b) and 27 (1) (c) of the Act, the manner in which the dollar value of (c) other forest land resources is to be calculated is by multiplying the number of hectares of other forest land resources damaged or destroyed, (i) if in a protected area or an area that is the subject of an order under section 7, 8, 10, 12, 14 or 15 of the Government Actions Regulation, by $5 000, or (ii) if in any other area, by $1 000 and then assigning the product obtained as the dollar value for those other forest land resources, and then assigning the product obtained as the dollar value for those other forest land resources, 2. The Commission's Decision [185] The Commission provided an overview of the evidence (Decision at paras. 151-155), summarized both parties' positions (Decision at paras. 156-160) and then turned to its findings. It began by reviewing the applicable statutory language in s. 30(c) of the Regulation. It noted that certain phrases within that section required clarity, including the phrase "damaged or destroyed": Decision at para. 164. [186] The Commission found that the experts called by CNR (Mr. Greig) and the Province (Mr. Manhard) agreed on the criteria "used to assess whether a particular area within the Fire perimeter had been damaged", but disagreed on "how these damage criteria should be applied spatially": Decision at paras. 167, 169. [187] Importantly, both agreed that it was impossible to "physically inspect the entire area to quantify how much of every hectare was 'damaged or destroyed'": Decision at para. 169. That meant the experts had to rely on a spatial model to extrapolate the damage criteria "from what one does know to the areas one did not visit": Decision at para. 169. While the method of spatial modelling used in forestry applications such as timber valuation is stipulated in applicable appraisal manuals, the experts were unaware of any similar standard model for assessing damaged or destroyed resources. [188] The Commission then reviewed case law on statutory interpretation and the meaning of damage under the Act as well as dictionary definitions before stating the following: [176] Accordingly, the Panel finds that--for the purposes of this appeal--"other forest resources" would be considered destroyed if all visible vegetation is killed, and they would be merely damaged if some vegetation or trees survived. The regulatory scheme does not qualify how much harm is required in order to be considered compensable damage. Further, as noted above, "other forest resources" in section 30 of the Regulation does not include Crown timber and grass land resources, but includes all other aspects of a forest ecosystem: flora, fauna, soil and water, replete with associated economic, visual, recreational, spiritual, and other intrinsic values. [189] Notably, the Commission had already noted that both experts agreed on the definition of "other forest land resources": Decision at para. 165. [190] The Commission also referred to an earlier Forest Appeals Commission decision that stated expert evidence was relevant to a panel's determination as to whether to award amounts for trees damaged without showing physical signs of damage: Canadian National Railway Company v. British Columbia, (2 November 2017), Decision No. 2016-WFA-002(a) at para. 77 [CNR 2016]. However, that decision addressed damage to Crown timber under s. 30(1)(a) of the Regulation, not s. 30(1)(c) as is the case in the present matter. [191] The Commission then discussed how both experts assessed the damage and their different assessment of what was "damaged". The Commission also conducted a thorough analysis of a term used by CNR's expert (incidental damage) and the concept of "fully damaged". Both are central to CNR's position that only if the entire hectare was damaged could it be included in the amount awarded to the Province. 3. Analysis [192] With regard to the allegation of contradictory reasoning, CNR focussed on discrete sentences from the Decision taken out of context. As part of its assessment of the disparate expert evidence regarding visible damage, the Commission wrote the following: "When a wildfire burns through a forest in the manner the Panel understands this one did, it will likely have caused damage wherever it burned, notwithstanding that it may not have visibly damaged (let alone destroyed) all of the trees within a given hectare": Decision at para. 190 (emphasis in original). CNR submits this sentence contradicted an earlier sentence where the Commission noted that "[t]he Province nonetheless agrees that visible damage is an appropriate 'touchstone' to determine whether Crown resources were damaged by the Fire": Decision at para. 160. CNR's position is that contradiction is indicative of the Commission's legal error, or in the alternative, an unreasonable interpretation of the legislation. [193] With respect, that is an unfair reading of para. 190, and more generally of the Decision. The entire paragraph reads as follows: [190] The Panel also finds that Mr. Greig's use of the term "incidental damage" is vague and not helpful: at best, it is an imprecise estimate of damage caused by the Fire. When a wildfire burns through a forest in the manner the Panel understands this one did, it will likely have caused damage wherever it burned, notwithstanding that it may not have visibly damaged (let alone destroyed) all of the trees within a given hectare. Some measure of ground-truthing is required to reliably assess the extent of the damage caused by a wildfire. The Panel is not prepared to find that some areas escaped damage or were less than 50% damaged based on a "best guess" estimate. A "best guess" falls short of the standard of proof that CN must meet; i.e., whether CN has provided evidence that establishes, on a balance of probabilities, the facts that it asserts. [194] The Commission is explaining why it finds "some measure of ground-truthing" was required to assess what was damaged or destroyed by the Fire. Its reference to "ground-truth" refers to the fact the Province's expert actually walked the ground to observe large swaths of the areas impacted by the Fire whereas CNR's expert did not. Combined with the fact that both experts agreed that "most" of the resources within the Fire's perimeter were damaged or destroyed (Decision at para. 172) and the Province's expert evidence that "virtually the entire understory, even if it left some live trees standing" had experienced fire damage (Decision at para. 179), CNR's position that the Commission was confused or unreasonable by awarding amounts for areas not visibly damaged is difficult to maintain. [195] It is also worth noting that the passage from para. 160 that allegedly contradicts para. 190 is actually drawn from the Commission's summary of the Province's position rather than its own analysis. [196] Put simply, the Commission preferred the Province's expert over CNR's because it found that evidence more reliable. This conclusion was drawn after careful consideration of both experts' evidence. On judicial review, the Court does not engage in a reassessment of the evidence presented; yet, in my respectful view, this sort of inquiry is implicitly what CNR's submissions seek. [197] CNR further submits that the Commission misunderstood the meaning of its expert evidence on "incidental areas". To support that proposition, CNR again points to a discrete portion of one paragraph in the Decision: [190] The Panel is not prepared to find that some areas escaped damage or were less than 50% damaged based on a "best guess" estimate. A "best guess" falls short of the standard of proof that CN must meet; i.e., whether CN has provided evidence that establishes, on a balance of probabilities, the facts that it asserts. [198] CNR states that this passage improperly reverses the onus, such that the Province benefits from "a presumption of damage". CNR also highlights the reference to "best guesses" to argue that its expert's approach helps resolve the "problem" created by s. 30(c) of the Regulation. CNR's position is that the wording of the section is problematic by being "cumbersome" because "the value of the award is tied to damage to resources" but "the unit to be measured is the hectare". [199] I do not agree that s. 30(c) is cumbersome or problematic, but even if it was, that is the explicit wording in the applicable legislation. In reality, the "problem" is one of CNR's own creation. Because its position is that only those hectares that are entirely damaged or destroyed should be included in an award, the wording in section 30(c) is problematic. This reasoning is a tautology. [200] In my view, the Commission did not misconstrue the expert evidence. Rather, I find its consideration of the expert evidence to be careful, thorough and reasonable. [201] Indeed, it is difficult to see how the Commission could have come to any other conclusion. I reproduce pertinent portions of the Commission's analysis on this issue that illustrate the soundness of its reasons and conclusions: [165] Both experts agreed on the definition of "other forest land resources", which includes vegetation (living or dead) other than trees that are considered to be timber (see below), the duff and soil layers, and any fauna--from large mammals to soil organisms--living there, plus intrinsic values related to soil stability, hydrology, photosynthesis, aesthetic and other intrinsic considerations. It includes the entirety of the ecosystem on any given forest land, but does not include the dollar value of mature and immature Crown timber. [167] Mr. Greig and Mr. Manhard also essentially agreed on the criteria they used to assess whether a particular location within the Fire perimeter had been damaged: if there were visible signs of having been touched by fire (e.g., blackened or charred tree bark or shrubs, burned or charred logs or duff layer, tree and undergrowth mortality attributable to the Fire), then the area or thing was damaged. However, even using what appears to be relatively simple criteria for determining if a particular location had been burned (and showed signs of damage), the experts interpreted the extent of damage differently, as depicted in photographs of areas that either or both had visited or viewed from a helicopter. [172] There is no disagreement that most of the forest resources within the Fire perimeter were damaged or destroyed. [178] As previously noted, in assessing damage, Mr. Greig looked for visual characteristics such as charred butts, singed or partially dead crowns, and charred or denuded understory or ground cover. Mr. Manhard looked for visible impacts such as dead stems, branches or crowns, singed foliage, charred bark, burned logs and roots, evidence of burned soil, litter and understory, etc. The Panel finds that both experts used essentially the same criteria to determine what constitutes visible indications of damage; however, they differed as to how they interpreted those criteria, which is crucial to consider because scaling up the definition of damage--from the single tree or plant to the area around the plant, and then to the hectare, and then to the entire Fire--is central to a reliable spatial modeling exercise used to estimate the number of hectares that were damaged or destroyed. [179] If one considers a site to be the area encompassed within any single photograph (many of which were placed in evidence and discussed by both experts) then the Panel can compare how each expert applied their criteria of damage to any given site. For example, in taking the Panel through a series of photos, Mr. Greig stated that the Fire "may not have spread" into some places and that others may only have experienced "incidental damage", or the Fire "may have missed part of this area", or (consistent with Mr. Manhard's views) that "occasional trees may have very light damage or may have missed getting any damage". Further, many of Mr. Greig's comments that are central to his opinion are prefaced by qualifying terms such as "could be", "appears ", "may have", "possibly from", "looks to be" or "possibly substantiates my claim". By comparison, having looked at the same photos, Mr. Manhard testified that virtually the entire site experienced fire damage: the Fire had burned through virtually the entire understory, even if it left some live trees standing. [180] The term "incidental damage" requires further comment. Apparently, Mr. Greig did not use this term on his map at the Opportunity to be Heard, but came up with it after his helicopter tour during which he viewed the polygons of green timber that he had mapped from an orthophoto. [181] In contrast, Mr. Manhard testified that wherever he could see the ground (from an orthophoto or helicopter), it was readily apparent that the entire area had been burned. He verified this when he walked past or through patches of trees that had green crowns. For example, in relation to one polygon that had a high percentage of apparently health timber characterized by green crowns, he observed: The fire ran through the entire gully of green trees and burnt out some of the roots, all of the understory trees, and burnt the bark and some of the stems The damage in one form or another impacted every tree in this area. [183] While acknowledging that he did not specifically check the areas that Mr. Greig categorized as having "incidental damage", Mr. Manhard said his objective was to view areas that had a high percentage of green crowns. He also stated that every patch of trees with green crowns that he looked at (from the ground) was completely burned at ground level, except for one patch measuring approximately 20 meters by 20 meters (0.04 hectare) within Mr. Greig's polygon 'D'. The impact to the understory aside, Mr. Manhard estimated that "well under one percent" of the trees within the Fire's perimeter were undamaged. [186] In examining the same photos, Mr. Manhard commented that his impressions were very different when he viewed the forest at ground level. [202] The Commission came to the reasonable conclusion to prefer the Province's expert, in part, because "he was on the ground observing areas inside the perimeter of the Fire" whereas CNR's expert "did not observe the understory and trees from ground level": Decision at para. 187. The Commission concluded that "ground observations were necessary in this case to validate aerial observations": Decision at para. 187. [203] CNR cites CNR 2016 in support of its position. CNR submits that in CNR 2016, the Commission found that "trees without visible damage might have suffered damage from a fire, but that invisible damage to a tree would need to be assessed by an arborist or botanist, and there was no such evidence before it". From that, CNR contends "like the panel in CNR 2016, [the Commission in this case] lacked any evidence (i.e. from an arborist or a botanist) that could support a conclusion that resources that were not visibly damaged were nevertheless damaged within the meaning of the Act and the Regulation". [204] CNR overstated the significance of CNR 2016. The issue in CNR 2016 was the calculation of the dollar value of damaged timber as determined by s. 30(1)(a) of the Regulation. Assessing Crown timber to determine stumpage is a very different exercise than assessing other forest land resources, although that alone would not necessarily distinguish the case from the facts here. [205] What does distinguish CNR 2016 from the present case is that in CNR 2016, the Commission had no ground assessment evidence before it. Even then, that absence was only one factor in its conclusion because the Commission recognized post-fire ground assessments are expensive and, in some circumstances, unsafe, and the utility and necessity of one depends on the circumstances: CNR 2016 at paras. 94-95. Ultimately, the lack of such evidence in that case was relevant. [206] CNR has also misstated the relevant proposition from CNR 2016. The Commission in CNR 2016 did not require expert evidence for this determination, it only said that such evidence is relevant, and the evidence of arborists and botanists were merely examples of individuals who could provide such evidence: CNR 2016 at para. 77. [207] As noted above, there was ground assessment evidence in this case, thus CNR 2016 is not helpful to the resolution of this issue. [208] Given the foregoing, it is very difficult to conclude that the Commission's conclusion on the amount of hectares damaged or destroyed by the Fire was not based on what was visibly destroyed or damaged. Nor can I say that the Commission ignored, misconstrued or misinterpreted any of the evidence. The Commission's treatment of the issues is thorough, intelligible, transparent and reasonable. VI. CONCLUSIONS [209] The Province and CNR agreed to an order varying the amount the Commission ordered to be paid for damaged resources. The Commission reclassified certain hectares as other forest land resources from grass land even though no party sought that reclassification. That increased the total amount awarded since s. 30 of the Regulation specifies that forest land resources are compensated at a higher rate per hectare than grass land resources. The result is that rather than paying $9,378,600 CNR must pay $8,956,289.75 for damaged resources. [210] However, for all the reasons articulated in this judgment, the appeal is dismissed, and with the exception of the variation noted above, the petition for judicial review is also dismissed. [211] The Province was substantially successful and is entitled to its costs in both the appeal and the judicial review. "Sharma J."