June 28, 2024
Summer 2024 Wildfire Update – June 28, 2024
SUMMER 2024 WILDFIRE UPDATE
By Dan Richardson, Dolden Vancouver, and
Sinead Linden, Dolden Vancouver
Recent news reports have noted that Canada’s wildfire season is off to a “slow start” this year, which is a relief to many Canadians and their insurers. However, the months of July and August are scheduled to be warmer than normal, which can cause an increase in wildfire activity. This update is intended to provide insurers with a primer on wildfires in Canada and associated legal risks.
Wildfires in Canada
Wildfires are a natural part of Canada’s forest ecosystems, and play an important role in maintaining the health of the forest. However, wildfires can also cause devastating destruction of land, property, and infrastructure as well as evacuations of entire communities.
On average, Canada experiences approximately 6,000 wildfires per year, most of them occurring in British Columbia, Alberta and Ontario. In 2023, Canada experienced its worst wildfire season in recorded history, with approximately 18.5 million hectares of land burned (for context: the United Kingdom has a total land area of approximately 25 million hectares).
Typical Causes of Wildfires
The causes of wildfires varies from region to region, and year to year. For example, in Alberta, the proportion of wildfires caused by humans in 2022 was 61%, and lightning was 38%, whereas in British Columbia, the proportion of human-caused wildfires in 2022 was 32%, and lightning was 68%.
Insurers are of course more concerned with human-caused wildfires, as these wildfires may give rise to legal liability. Typical examples of human activities that may cause wildfires include: vehicle use (including heavy equipment, freight trains); open burning, industrial activities such as logging and mining, fallen power lines, campfires, and arson.
Open burning is one of the most common causes of wildfires that results in litigation for fire control costs and/or property damage claims. In this context, “open burning” is a term used to describe burning of materials outside, i.e., “in the open”. Many industries in Canada use open burning as a means of disposing of combustible materials, such as piles of woody debris left behind from timber harvesting (often described as “brush” or “slash”).
Those who use open burning need to be aware of the risks associated with “holdover” fires, which account for a significant number of wildfires. A holdover fire is a fire that burns underground, usually undetected, for several weeks or months, before resurfacing during warmer conditions. Holdover fires typically originate from debris piles, which may appear to be fully extinguished, but remain burning underground.
Wildfire Claims in Canada
There are two main exposures that arise from wildfires: damage to property and firefighting costs. There is potential for other claims, such as injury or death caused by fire and smoke, and more novel claims such as class actions for community health impacts, economic loss claims, etc. Under common law, a person may seek damages for property lost or damaged by a wildfire in various common law causes of action, including negligence (most common), nuisance, trespass, and the rule from Rylands v. Fletcher.
Each year the provincial governments of Canada spend vast sums of money to fight wildfires. In British Columbia alone, the Province spent nearly $1.0b in firefighting costs in 2023. As a result, all provinces and territories in Canada have enacted some form of legislation to permit recovery of fire control costs from a person who causes a wildfire. However, British Columbia remains the sole province to have created an administrative tribunal and appeal process dedicated to the recovery of these costs, and to address contraventions of wildfire legislation.
Some provinces – namely, British Columbia, Alberta, Manitoba and Ontario – permit recovery of firefighting costs from a person who causes a wildfire, regardless of whether that person was negligent, careless, or in violation of the standards set by the applicable wildfire legislation. The government simply needs to establish that the person caused or contributed to the wildfire, to permit recovery of firefighting costs.
In the remaining provinces and territories, in order to recover firefighting costs, the government must establish that the wildfire resulted from an offence under the applicable legislation, or as a result of “carelessness” on the part of the person who caused the wildfire.
Takeaway
Unfortunately, as the climate in Canada continues to warm, Canada will likely experience more wildfires in the coming years. Insurers can expect to see more wildfire claims – some of which can be substantial.
Dolden has acted for numerous insureds in a variety of cases relating to wildfire claims. In particular, we have successfully defended logging contractors, forestry contractors and individuals in claims for property loss, firefighting costs and contravention orders pursuant to wildfire legislation. For further information, please do not hesitate to contact the authors of this article: Dan Richardson and Sinead Linden.
For further information or if you have any questions about the above article, please contact the authors: Dan Richardson, Dolden Vancouver, Email: [email protected], and Sinead Linden, Dolden Vancouver, Email: [email protected].
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| Cody Mann |
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