Forestry Officials Tied CN Rail to Lytton Fire, Then Backed Off

As recently as last year, B.C.’s Ministry of Forests believed that Canada’s largest railway company played a role in the deadly wildfire that destroyed Lytton.

In a February 2024 letter to the Canadian National Railway, provincial officials told the company that it intended to seek restitution for costs for the fire.

But just six weeks later, the province reversed course and closed the file, according to documents released in response to a freedom of information request.

Railway companies have long denied responsibility for the June 2021 blaze, which started near CN’s tracks and quickly levelled the community, killing two residents and destroying dozens of homes and businesses.

Last September, the RCMP wrapped up its three-year investigation without laying charges, saying it could not determine what caused the fire.

The RCMP probe was one of several related to the blaze.

In February 2024, the province sent CN a letter that said the BC Wildfire Service had “completed an investigation indicating you may have caused or contributed to” the Lytton Creek wildfire. The fact that BCWS believed the railway was at least partially to blame for the fire has not previously been reported.

The letter reveals that the ministry was seeking to recoup firefighting costs and the value of lost resources, such as timber and property, based on Section 25 of B.C.’s Wildfire Act.

“BCWS intends to pursue the recovery of government fire control costs expended on this fire,” the ministry wrote. “BCWS may determine an amount that is equal to the dollar value of any Crown resources damaged or destroyed as a result of this fire and require you to pay those associated costs.”

Within six weeks, however, the ministry had backed away from the cost recovery process.

In a short letter dated April 2, 2024, and addressed to law firm McCarthy Tétrault LLP, the ministry advised that it was “no longer proceeding with a cost recovery action” and would close its file.

CN declined The Tyee’s request for comment on the letters, citing ongoing legal challenges related to the wildfire.

B.C.’s Ministry of Forests also declined an interview request and said it wouldn’t comment on why the ministry reversed course or whether it had determined a total cost for the fire, which burned more than 83,000 hectares and destroyed hundreds of buildings.

Opaque investigations

The letters provide another glimpse at investigations that have largely remained hidden from the public since Lytton burned four years ago.

In its February 2024 letter to CN, the ministry said that an incident report with “supporting information setting out BCWS’s case” against the company would follow. It’s not clear if the province ever disclosed that report, which would have contained evidence relevant to the RCMP’s investigation. No such report was included in documents released following the freedom of information request.

Other reports have remained secret.

Last year, as the Ministry of Forests launched its bid to recoup costs from CN, the province was also fighting to keep its investigation report into the Lytton wildfire from the public.

In June 2022, The Tyee filed a freedom of information request for “the most recent draft report” into the fire’s origin and cause. The ministry denied the request. After The Tyee complained to B.C.’s Office of the Information and Privacy Commissioner, the dispute went to an inquiry. The OIPC determined in September 2024 that the report was under the custody and control of the RCMP as part of its criminal investigation and could not be publicly released.

Three days later, the RCMP announced that its criminal investigation had concluded.

“Due to the potential for future developments, as we’ve seen before in complex and lengthy investigations, the specific details of the evidence will remain protected,” the RCMP said in a statement at the time.

Documents submitted by lawyers for B.C.’s attorney general’s office during The Tyee’s OIPC inquiry revealed that the province faced its own barriers in accessing its wildfire investigation report as it sought to recoup costs for the Lytton fire.

In an affidavit, an employee with the Ministry of Forests’ compliance and enforcement branch wrote that the ministry had requested copies of documents from the RCMP in July 2023 for use in its Wildfire Act investigation. Those documents included BCWS’s draft report, which contained evidence collected by police.

The RCMP responded that the province would need a search warrant to access the files. The province got a warrant from the B.C. provincial court, but it came with a sealing order that prevents public disclosure of the files, according to the employee’s affidavit.

The affidavit, which was dated Feb. 29, 2024 — nine days after the province notified CN of its intention to pursue costs for the fire — declared that both the RCMP and BCWS investigations remained ongoing.

At that time, BCWS wildfire enforcement superintendent Lisa Hudema wrote that the ministry had sought the RCMP’s files in order to proceed with its cost recovery process. But in a subsequent affidavit dated June 5, 2024, Hudema said the BCWS investigation report was a draft that had since become “outdated.”

Hudema wrote that “additional information” had caused the BCWS’s lead investigator to change his opinion “on certain issues.”

Administrative hearings, which provide an opportunity for those accused of contravening the Wildfire Act to provide a defence, are not made public unless the outcome is appealed to B.C.’s Forest Appeals Commission.

Among the most expensive public wildfire cost recoveries was a $16-million penalty issued to CN for igniting the Cisco Road fire, which burned 2,400 hectares near Lytton in 2015.

CN accepted responsibility for the fire, which was caused by rail maintenance, but disputed the penalty, saying firefighting efforts had contributed to the blaze. The company fought to reduce the amount for nearly a decade, until the B.C. Court of Appeal dismissed its attempt to overturn the Forest Appeals Commission’s decision last year.

Documents related to administrative hearings can be requested under B.C.’s freedom of information laws. The Tyee filed two information requests in May 2024 seeking documents related to cost recovery for the Lytton fire, but the letters written by the Ministry of Forests to CN were not provided.

The province responded that “no records were located” in relation to both of The Tyee’s requests.

The letters by the Ministry of Forests were later posted online in December after a member of the public filed their own freedom of information request asking the province to provide documents connected to BCWS’s Lytton investigation.

When asked why the letters were not provided in response to The Tyee’s original request, a spokesperson for the Ministry of Citizens’ Services said that “small differences in phrasing can lead to different outcomes” in freedom of information responses.

A lack of information about the cause of the wildfire in Lytton hasn’t stopped a flurry of lawsuits against railway companies CN and Canadian Pacific, as well as federal and provincial agencies, in recent years. CP lawyer Michael Eizenga told a B.C. Supreme Court judge last year that 10 such claims had been filed against the company.

The railway companies will be back in court in the coming weeks for appearances related to two separate lawsuits filed by Lytton residents.