CN cannot limit wildfire cost appeal to original record, B.C. commission rules

Canadian National Railway failed to confine its challenge to a $435,371.76 wildfire cost-recovery order to the evidence before the original decision-maker. In Canadian National Railway Company v. Government of British Columbia, 2026 BCFAC 4, the B.C. Forest Appeals Commission ruled on June 17, 2026 that the railway’s procedural-fairness allegations could require additional evidence.

The preliminary decision did not decide whether CN must ultimately pay the disputed amount or whether the original hearing was unfair. It rejected CN’s application for an appeal based solely on the existing record, while leaving room for the parties to agree on a different process and seek a further order.

Cost recovery despite a due-diligence defence

The dispute concerns a wildfire that ignited near Spences Bridge on September 3, 2022. Following a July 2025 opportunity-to-be-heard hearing, a B.C. Wildfire Service deputy director found that CN had established a due-diligence defence to a contravention of the Wildfire Regulation and had not contravened section 6(1) of the Wildfire Act.

The deputy director nevertheless concluded that CN caused the fire and ordered recovery under section 25(2) of the Act. The August 7, 2025 order comprised $348,581.57 in fire-control costs, $59,640.19 for mature Crown timber and $27,150 for forest and grassland resources damaged or destroyed.

CN challenged both the statutory route to that order and the fairness of the process. It argued that the province could not pursue section 25 cost recovery alongside the other alleged contraventions and that it had not received adequate notice or an opportunity to answer the section 25 case. Those arguments remained issues for the appeal, not conclusions reached in this preliminary ruling.

All parties agreed that the statutory-interpretation question could be decided without additional evidence. Their disagreement concerned CN’s fairness complaint, which extended to events before the original hearing as well as the hearing itself.

Who defines the appeal record?

CN said the existing documents were enough to determine whether it had received proper notice. It opposed allowing the province to supplement its case after the original hearing and argued that a new proceeding should not cure an unfair process below. The province said the allegations lacked sufficient detail to determine what evidence would be needed in response.

The commission held that it chooses the appeal process, rather than leaving that choice to either party. Its usual approach permits new evidence and argument, but it may restrict an appeal to the original record. The relevant considerations include the issues’ breadth, the record’s adequacy, potentially useful further evidence, fairness, proportionality and efficiency.

The commission rejected the proposition that its appeal process could never cure earlier procedural unfairness. A full and fair new hearing can generally remedy defects in an earlier administrative process. That does not entitle an original decision-maker to act unfairly in reliance on a later appeal, and the choice of procedure still depends on the case’s circumstances.

Here, CN had not provided enough particulars about why the notice was inadequate or what further material it expected before the original hearing. Without those particulars, the commission could not establish whether all relevant earlier events were reflected in the existing record or whether that record was sufficient.

Nor could CN define the appeal record simply by listing the documents on which it intended to rely. The responding parties needed a fair opportunity to identify relevant material. Communications before the original hearing, if they existed, might help answer the notice complaint even if they had not been before the deputy director.

The commission found it would be unfair to prevent the province from presenting evidence responsive to the allegation that it had acted unfairly. It also agreed with CN that, if the province had additional evidence, it should identify that evidence directly. The ruling concerned evidence about procedural fairness and notice, not permission to add evidence on the merits of the section 25 claim.

No mandatory oral hearing or final liability ruling

Although the statutory question could proceed on the existing record, CN’s application covered both issues and the possibility of separating them had not been addressed. The commission therefore dismissed the application as a whole.

Absent a further order, the appeal was to proceed as a new hearing that could be oral, written or a combination. Allowing evidence beyond the original record did not automatically require an oral hearing. The commission also left open further discussions about a record-based process once the fairness allegations were clarified.

The decision illustrates the limits of asking an appeal tribunal to assess alleged procedural defects solely from a record whose completeness is itself uncertain. It did not resolve CN’s statutory interpretation argument, uphold the cost-recovery order on its merits or award a new penalty.