Appeal court rules to let Lemon Creek class action proceed
A class action lawsuit over the 2013 spill of aviation fuel into Lemon Creek took a dramatic step forward last week.
BC’s Court of Appeal dismissed an action by the defendants in the case to have the class action thrown out of court.
“This decision is a great victory for environmental class actions and the community of the Slocan Valley,” said lawyer David Aaron in Vancouver. “Finally, a procedure has been confirmed which will allow class members their day in court.”
The lawsuit claims negligence, nuisance and loss of enjoyment of property against the provincial government, an aviation company, the fuel company, and the tanker truck driver.
But it’s not been an easy fight.
The chambers judge hearing the case, J.D. Masuhara, certified the action to proceed in 2017. The defendants appealed that ruling and won. They had the decision sent back to Masuhara with instructions to change particulars of the ruling.
The judge did that and reconfirmed the class action to go ahead in 2021.
The defendants appealed again, but were not so lucky this time. In a 35-page decision issued January 19, the BC Court of Appeal ruled an appeal by the defendants should fail. The court cited several tests from case law, and found the judge had not erred on any of the legal points.
Justice Christopher Grauer wrote that Masuhara “relied in large part on the centrality of the questions of causation and responsibility in negligence, and on the concerns of access to justice and judicial economy.
“In my view, he did not err in following this approach; the appellants are asking us, in essence, to re-weigh the judge’s careful determinations.”
Grauer's decision was affirmed by the two other judges on the appeal panel.
Aaron is wasting no time moving forward on the case. He reports that he has already made the application for the trial to be scheduled to begin.
“Residents of the Slocan were awoken in the middle of the night, coughing and choking on jet fuel vapours. They were denied access to their homes under threat of legal consequences,” he says. “Now there will be a single common-issues trial to determine who is responsible for events leading up to that happening.”
The disaster began after a tanker truck filled with aviation fuel tipped over on a logging road in the Slocan Valley in July 2013. The driver had got lost searching for a BC Wildfire Service helicopter refuelling station. He ended up spilling 35,000 gallons of high-octane jet fuel into Lemon Creek, a tributary of the Slocan River. The spill forced around 2,500 people from their homes up to 40 kilometres downstream from the spill. Many were forced out for several days, or had to find alternate water sources for themselves and livestock.
Aaron notes that this summer will mark the 10th anniversary of the disaster. And he’s expressed frustration at the obstructing tactics by the Province and other defendants.
“This case tells us how the government treats innocent members of the community that fall victim to fossil fuel transportation disasters,” he says. “…What happens when something goes wrong? Does the government step up to the plate and make whole those who fall victim to those accidents? This is a case in point.”
He particularly highlights the role the local MLA has played in the matter, who he says was a strong advocate for timely compensation when she was in Opposition during the time of the disaster.
“Now she’s a member of the government – the Finance Minister, in control of the purse strings,” he says. “So where is the compensation?”
No date has been set for the trial, which will be heard in Vancouver.
John Boivin, Local Journalism Initiative Reporter, Valley Voice