Lemon Creek fuel spill class action suit gets second go ahead
June 3, 2021 By John Boivin, Local Journalism Initiative Reporter, Valley Voice
The class action lawsuit launched by residents of the Slocan Valley after the 2013 fuel spill in Lemon Creek has been given the go-ahead to go to trial, again.
Judge D.M. Masuhara ruled on May 21 the lawsuit could go ahead, after changing some of the specifics of the suit to reflect a higher court decision.
The lawsuit stems from the July 2013 spill of 35,000 litres of jet fuel into Lemon Creek by a transport driver making a delivery to a firefighting operation. The spill forced thousands of people up to 40 kilometres downstream in the Slocan Valley to evacuate the area. The spill also killed fish and forced residents to get alternate sources of drinking water for themselves and livestock for days. Residents who were affected by the spill launched the suit for damages.
Masuhara, the chambers judge reviewing the certification, ruled in 2017 the class action could go ahead — the first time such a class action environmental lawsuit had been approved in British Columbia. But the defendants in the case — the helicopter company, fuel-delivery company, the truck driver, and provincial government — appealed. The BC Court of Appeal found issue with some of the particulars of the issues to be decided (called the “common issues”), and remitted, or sent the matter back, to Masuhara for a re-determination according to the higher court’s reasons.
After implementing the changes outlined by the Court of Appeal, Masuhara re-certified the lawsuit as a class action.
“I find that a class proceeding is the preferable mechanism for resolving the certified common issues,” he said in his judgement.
“It was encouraging in that another hurdle was cleared in advancing the action,” says David M. Aaron, one of the lawyers leading the class-action suit. “Because it would be prohibitive for every class member to retain the experts that we’ve retained in the fields of biology, chemical engineering, and environmental impact. It would be highly inefficient for there to be thousands of individual trials each determining the same question of who is at fault for the transgressions, if any, that resulted in the fuel spill.
“Now that question is going to be determined in one action, in one court, on behalf of all class members.”
The latest hurdle cleared is a big one, but it is very far from being over. The defendants may appeal this latest decision. Even if they don’t, it may be years before a decision is rendered, and that decision could face its own appeals.
“The judicial process is often slow and laborious, but that’s what it takes to get things right. We’ve had to stick to this matter at the Court of Appeal, and back to the chambers judge, and we’re still only past the procedural question of what the appropriate modality is for the action,” says Aaron. “Now that has been determined as a class action. We’re going to hold the defendants accountable under that procedure, and it’s important the people of the Slocan Valley and in particular the members of the class exercise patience.
“Sometimes the wheels of justice move very slowly.”
The deadline for appealing this latest decision is June 21. A trial date won’t be set until that period is over.
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