Inside the Failed Lytton Fire Probe and a Changing Expert Opinion

Lytton residents may never know what started the devastating June 2021 wildfire that levelled most of the community, killed two residents and destroyed dozens of homes in nearby Lytton First Nation and surrounding rural areas.

The RCMP announced Wednesday that its criminal investigation had concluded without determining the cause of the fire. It said there was no evidence to suggest the fire was intentionally set by anyone’s “actions or inactions.”

Over email, Lytton Mayor Denise O’Connor told The Tyee she was “extremely disappointed” but acknowledged the complexity of the investigation.

“I had hoped for an understanding of the cause for some closure for many of the people,” O’Connor wrote.

It’s unclear what the announcement could mean for residents attempting to rebuild their lives or if B.C. will ever recoup what is likely tens of millions of dollars in lost resources and firefighting costs.

While it’s been widely speculated that a freight train caused the fire, which ignited next to the railway tracks a day after Lytton set a new Canadian heat record of 49.6 C, railway companies have denied responsibility.

That hasn’t stopped a flurry of legal actions against Canada’s biggest railway companies, Canadian National and Canadian Pacific. At a B.C. Supreme Court hearing held in April to request collective management of the lawsuits, CP lawyer Michael Eizenga said 10 such claims had been filed.

Among them is a proposed class-action lawsuit filed by Lytton residents against CN, CP and federal regulators, alleging they did not do enough to prevent wildfires on the day Lytton burned.

In 2023, the B.C. Supreme Court declined to certify the class action, citing “deficiencies” that included a lack of evidence about the fire’s cause. It gave leave for the plaintiffs to amend their claim once the deficiencies are resolved.

Law firm Slater Vecchio LLP did not immediately respond to The Tyee’s request for comment on how the RCMP’s announcement could affect the lawsuit by Lytton residents.

Fire investigation expert ‘changed his opinion’

The news comes days after B.C.’s Office of the Information and Privacy Commissioner upheld the province’s decision to withhold the BC Wildfire Service’s initial investigation report into the cause of the fire.

In June 2022, The Tyee requested the draft report through freedom of information laws. The province denied the request, saying the document, which was prepared by a Ministry of Forests fire origin and cause specialist but contained evidence compelled by the RCMP, was not under its custody or control.

The Tyee asked the Office of the Information and Privacy Commissioner to review that decision. On Sept. 6, the OIPC agreed with the ministry, saying the report falls outside the scope of B.C.’s Freedom of Information and Protection of Privacy Act. The RCMP also declined The Tyee’s access-to-information request for the draft report, saying the matter was still under investigation.

In documents filed with the OIPC earlier this year as part of the inquiry process, staff with the Ministry of Forests indicated that BC Wildfire Service investigators may have changed their opinion on the fire’s cause over the course of the investigation.

The Tyee’s request captured “a point-in-time draft” of the BC Wildfire Service report, which has since become outdated, wildfire enforcement superintendent Lisa Hudema wrote in an affidavit filed with the OIPC.

Hudema added that the report’s author, fire origin and cause specialist Steve Grimaldi, “received additional information” and “consequently changed his opinion on certain issues” related to the fire’s cause. More recent versions of the BC Wildfire Service report contain “substantive changes,” Hudema added.

When contacted by The Tyee, Grimaldi, who is no longer with the BC Wildfire Service, declined to comment, directing questions back to the ministry.

BC’s attempt to recoup its own costs

In making its argument to the OIPC, the Forests Ministry pointed to its own inability to access the BC Wildfire Service report — even as it attempted to recoup costs resulting from the wildfire.

The original report was retained by Grimaldi as the RCMP’s investigation was ongoing, lawyers for the province wrote, but the ministry could not access it for its own purposes without obtaining a court order.

In September 2023, the ministry applied to the B.C. provincial court for a search warrant that would allow it to access the RCMP’s investigation file into the Lytton fire. That warrant was granted, along with a sealing order that prevents the ministry from disclosing it publicly, according to documents filed with the OIPC.

The reason for accessing the RCMP file was for “administrative hearing purposes to make the Crown whole by recovering fire suppression costs and Crown damages,” Hudema wrote.

Administrative hearings, held under Section 27 of the Wildfire Act, are an opportunity for those alleged to have contravened the Wildfire Act to provide a defence. The process is notoriously opaque. The ministry doesn’t disclose when it initiates administrative hearings, nor does it make decisions public.

It’s unclear where that process led or if the province believed it had identified someone responsible for the fire. B.C.’s Ministry of Forests didn’t respond to The Tyee’s questions prior to deadline.

In a June submission to the OIPC, the ministry said its administrative investigation into the Lytton fire had concluded and files received from the RCMP had been destroyed.

Lytton fire costs could be ‘quite significant’

This could leave B.C. on the hook for millions of dollars in firefighting costs, lost timber and the cost of replanting burned forests.

“The costs that the government has incurred in the process of fighting the fire can be quite significant,” said Ryan Morasiewicz, a Vancouver-based lawyer whose practice focuses on commercial and insurance defence litigation. “That value of the timber itself, or value of the trees, can be quite large.”

The province did not provide The Tyee with costs related to the Lytton fire prior to deadline.

Among the most expensive wildfires in B.C.’s history is the Cisco Road fire, which ignited 10 kilometres south of Lytton in June 2015. CN accepted responsibility for the fire, which was caused by rail maintenance, but disputed a penalty levied by the province, saying firefighting efforts had exacerbated the blaze.

More than $16 million in provincial costs were roughly divided between costs for fighting the fire and lost timber. The fire burned 2,400 hectares and took four months to extinguish.

CN fought the penalty for nine years. Its efforts ended last week, when the B.C. Court of Appeal dismissed its appeal.

The Lytton Creek fire burned significantly more than the Cisco Road fire — more than 83,000 hectares — before it was contained in August 2021.

Thompson-Nicola Regional District director Tricia Thorpe believes costs for the fire that destroyed Lytton could be considerably more, given the impacts to private property.

In addition to lost timber and firefighting costs, B.C. has provided nearly $50 million to the Village of Lytton for its recovery.

Outside the village limits, rural property owners have struggled with the costs of basic remediation, like site cleanup, Thorpe previously told The Tyee.

Thorpe is among those who lost her home in the fire. It was one of 30 that were destroyed outside the village boundary and have not had provincial support to rebuild.

She said she was “disappointed and saddened” that rural residents impacted by the wildfire had been overlooked by the RCMP. Although the force said yesterday’s update was sent to the village, Lytton First Nation and the family of the couple who died, it was not provided to the regional district, she said.

“Nowhere in the RCMP news release does it speak of the 30 impacted properties near Lytton,” Thorpe said. “It would be easy for residents to question whether the RCMP investigation was aware of, or simply overlooked, those TNRD property owners. If so, what else was the investigation unaware of or overlooked?”

The RCMP said that, while its investigation has concluded, “it does not preclude credible information being received in the future.”

The potential for future developments means that “the specific details of the evidence will remain protected,” it added.

While there is a three-year limitation period for the province to recoup costs related to a wildfire, that period begins “on the date on which the facts... first came to the knowledge of an official,” according to the Wildfire Act.

Morasiewicz said that means the limitation period could be extended if new information comes to light.