Introduction: Increasing Wildfires and Pathways to Liability
Within the last five years, Canada has experienced two of its worst wildfire seasons on record. Over the last three years, wildfires have burned roughly 31 million hectares of land—a staggering total that exceeds the area burned during each of the three preceding decades—and underscores the accelerating scale of wildfire risk across the country. On the heels of these record-setting seasons, the 2026 wildfire season is already showing signs of a similar pattern: wildfires have triggered numerous evacuation orders, and warmer and drier-than-normal conditions are forecast for the months ahead.
Wildfires have not only destroyed vast forest resources, but have caused catastrophic property damage, including the loss of the Village of Lytton in 2021, the destruction of a substantial portion of the town of Jasper in 2024, and widespread destruction in Fort McMurray in 2016. The impacts have also extended far beyond the burned areas. In recent seasons, smoke from Canadian wildfires has drifted across central and eastern Canada and into the United States, leading to hazardous air quality, reduced visibility, and public health advisories in major cities including Toronto, Ottawa, and Montreal.
It has been estimated that 17% of the area burned by wildfires can be attributed to human causes as opposed to lightning strikes. However, the proportion of area burned may understate the risk posed by human-caused fires. While lightning-caused fires account for the vast majority of the total area burned, human-caused fires are more likely to ignite near population centers. As a result, even if human-caused fires account for a smaller share of the total area burned, they may present a disproportionate risk to homes and infrastructure.
Insurers, all levels of government, businesses, and property owners are watching the shifting landscape. Those impacted by wildfires are increasingly exploring avenues of legal liability.
There are two main tracks to wildfire liability: statutes which empower provincial governments to recover losses incurred due to wildfires, and common law causes of action which may afford private persons and corporations with a remedy to recover compensatory damages.
The Wildfire Act
In British Columbia, the Wildfire Act, S.B.C. 2004, c. 31 (the “WA”) and the Wildfire Regulation, B.C. Reg. 83/2022 provide mechanisms for the Province to recover fire suppression costs, Crown-resource losses, and reforestation and silviculture expenses from a leaseholder, landowner, or a permitted occupier of lands where a fire originated, if the minister determines that the person caused or contributed to the fire or fire spread: s. 25 of the WA. Notably, a cost recovery order issued under s. 25 of the WA is not subject to a defence of due diligence: see e.g. Petrus Jacobus Van Der Merwe v. Government of British Columbia, 2021 BCFAC 5.
The WA also empowers the minister to order that a person pay an administrative penalty if that person contravened a provision of the WA. Where the contravention caused or contributed to a wildfire, the minister may also order the person pay the fire suppression costs, Crown-resource losses, and reforestation and silviculture expenses caused by the wildfire. Unlike a s. 25 order, such orders are subject to a due diligence defence. The WA also contains provisions that may protect someone who committed an offence by a reasonable mistaken belief or officially induced error (such as an erroneous official guideline): see s. 29(b) and (c). Section 30 further extends liability to employers as well as directors and officers who authorized, permitted, or acquiesced in a contravention.
A key case on cost recovery under the WA is Canadian National Railway Company v. Government of British Columbia, 2020 BCFAC 2, aff’d 2022 BCSC 2263, aff’d 2024 BCCA 309, where CN Rail committed rail cutting contraventions of the WA resulting in a wildfire. The government used planned fire ignition as part of the fire control tactics, which the Court deemed a legitimate response that did not break the chain of causation. Further, there was no need to prove that the suppression response was necessary or effective. CN Rail paid the government over $16 million in recovery for fire control and resource damage.
Another case, Tolko Industries Ltd. v. Government of British Columbia, 2021 BCFAC 4, aff’d 2024 BCCA 303, illustrates that creative technical arguments can be used to fit under the exceptions to liability. The Wildfire Regulation at s. 29 sets out narrow circumstances where the minister may not order cost recovery where the person did not willfully cause or contribute to the start or spread of the fire and the person either has a wildfire response agreement or the wildfire arose from industry activities aside from those involving an open fire. Tolko had burned a debris pile that produced a later undetected underground holdover fire. During unseasonably dry conditions, the holdover reignited and escaped. Tolko conceded contraventions and paid administrative penalties among other costs, but argued it fell into the s. 29 exemption for fire suppression costs because of the distinction between the initial fire and the secondary wildfire, the secondary wildfire was related to industrial activities, and it had negligently, not wilfully, caused the secondary wildfire. The Court accepted the application of the s. 29 exemption.
Provinces across Canada have statues similar to the WA, but as the review of the BC case law illustrates, small differences in statutory and regulatory wording may have significant implications for the availability of defences and establishment of liability. Careful consideration must be given to the specific statutory wording. Wildfires, of course, do not respect provincial boundaries and may spread across multiple jurisdictions resulting in claims under different legislation. An example of such a cross-border wildfire was the recent Creighton–Flin Flon wildfire in Manitoba and Saskatchewan.
Tort-based Liability for Wildfires and Government Immunity
The second avenue for liability is fault-based claims, which are generally framed in negligence, nuisance, or breach of the rule in Rylands v. Fletcher. The decisive issue is often whether plaintiffs can establish a plausible ignition pathway supported by expert evidence, physical indicators, eyewitnesses, and surrounding circumstances.
Recent litigation centering on the Village of Lytton demonstrates how courts approach evidentiary standards for wildfire class actions based in tort.
In O’Connor v Canadian Pacific Railway Limited, 2023 BCSC 1371 and in the subsequent formulation of that proceeding, Moiseiwitsch v. Canadian National Railway Company 2025 BCSC 2377, the plaintiffs alleged that railway operations caused devastating wildfires primarily due to a CN Rail train emitting heat, coal particles, or rail sparks as it moved along the rail lines. It was also alleged that the government defendants failed to properly monitor and enforce fire-prevention measures. The initial certification attempt was denied by Former Chief Justice Hinkson with leave to amend due to pleading and evidentiary deficiencies, including that the claims were overly broad, missing material facts, bare on causation, and inadequate on class definition and common issues.
When this claim came back to the Court in amended form with improved evidence in Moiseiwitsch v. Canadian National Railway Company, Justice Branch certified the class action in negligence, private nuisance, and based on the rule in Rylands v Fletcher against the CN Rail defendant. However, Justice Branch struck the claims for public nuisance and relational economic loss on the basis that they had no prospect of success. Critically, Justice Branch found the evidentiary standard of “some basis in fact” was met by evidence of the extreme fire risk conditions, an eyewitness seeing fire smoke 2–5 minutes after the rail car passed, the rail car travelling at an excess speed, winds dispersing coal dust, elevated wheel heat, vegetation near the tracks, substantial burning at the proposed origin location, and new expert evidence providing a plausible ignition pathway. The Court rejected the defence position that a lack of a direct eyewitness viewing the fire inception could defeat causation, preferring to place weight on the circumstantial evidence.
In addition to providing cost recovery rights, the WA provides the BC government with broad powers to prevent and fight wildfires.
In another recent case, Jae’s Honey Ltd. v. British Columbia (FLNRORD), 2022 BCSC 1513, which involved a government aircraft dropping fire retardant that landed on the plaintiff’s beehives, the Court struck the entire tort claim based on the statutory immunity granted to the government in the WA at s. 66.1(3). To bypass such immunity and recover damages related to firefighting operations, the plaintiff must show bad faith or else proceed only by s. 9(4), which provides narrow redress where the government enters private land in carrying out fire control.
Developments in American Wildfire Lawsuits
Trends in American litigation often foreshadow what lies ahead for Canada. In January 2025, California experienced devastating wildfires, the most destructive of which were the Eaton Fire in Altadena and the Palisades Fire in Pacific Palisades.
Several residents of Altadena have commenced actions against Southern California Edison, alleging that faulty electrical infrastructure ignited the Eaton Fire. Nearly 1,000 cases have now been consolidated under the lead action, Gursey v. Southern California Edison Co., with bellwether trials scheduled in 2027. Southern California Edison has commenced its own cross-complaints against several government bodies alleging inadequate water supplies and failure to issue evacuation orders.
Respecting the Palisades Fire, residents have filed an action against the municipality and the Los Angeles Department of Water and Power, alleging insufficient wildfire preparation and failure to maintain its water infrastructure or keep the Santa Ynez Reservoir at an adequate level after fire hydrants dried up. The action also names various utility companies for failing to shut off services in burning areas, which allegedly led to explosions and further fires.
Both the United States and Canada can expect wildfires to result in mass tort claims met with vigorous defences, with both plaintiffs and defendants making allegations of mismanagement against government bodies and public utilities.
Conclusion: Steps to Reduce Risks
The WA places substantial financial risk on parties found to have caused or contributed to a wildfire, even where negligence cannot be established. Tort-based claims continue to evolve as courts grapple with complex questions of causation, expert evidence, and climate-related factors.
For businesses operating in forestry, transportation, utilities, energy, agriculture, and resource development sectors, wildfire risk is not only an operational concern, it is also a source of legal exposure.
Organizations should review wildfire prevention practices and policies, contractual liability allocation, insurance coverage, emergency response plans, and regulatory compliance to better manage these evolving risks.
If you require additional information or further assistance, please contact Scott Harcus, Frances Miltimore, or a member of our Environmental Practice Group.
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