Residents of the Slocan Valley will finally have their day in court seeking compensation for the damage caused when 35,000 litres of jet fuel spilled into Lemon Creek a decade ago this week.

The class-action lawsuit for the 2013 spill is set to be heard by a judge for eight weeks, beginning in January of 2025, the lawyer for residents has told the Valley Voice. The announcement by the class action lawyers came just before the 10th anniversary of the spill, which took place on July 26th, 2013.

“There’s always the prospect that any litigation could resolve itself by way of settlement,” says David Aaron, a lawyer heading up the civil litigation. “But in the absence of a settlement, those are the scheduled trial dates.” 

The fuel spill occurred when a driver hauling a tanker load of helicopter fuel took a wrong turn while heading for a wildfire crew muster station. After driving up the forest service road about a kilometer, the shoulder gave way and the truck tipped into Lemon Creek. Nearly 35,000 litres of fuel spilled into the creek. Cleanup efforts took more than a month and residents were forced out of their homes, reporting nausea from fumes and blistering if they came in contact with the fuel. Nearly 2,700 properties were evacuated for a day, and even when they returned home they were warned not to drink water from the creek or river, stay out of both water bodies, and not to eat any food from their gardens if they could smell fuel.

The lawsuit, first launched just a month after the July 2013 spill, is in the name of Robert Kirk, who owns 51 acres of rural land about six kilometres from the mouth of Lemon Creek. He woke up the morning after the spill to a vicious headache and heard his horse coughing. He found a back eddy had collected fuel from the spill the night before into the wetlands on his property. His claim says he found dead wildlife on his land, and that other common animals had since disappeared. 

But Kirk is only the named plaintiff; the class action launched by Aaron covers anyone living in the evacuation zone on July 26, 2013 – estimated to be around 600 people in total. Anyone forced to evacuate that night may be eligible for compensation.

Long delays

Two provincial government ministries – Forests, Lands and Natural Resource Operations, and Transportation and Infrastructure – as well as Executive Flight Centre (the aviation fuel supplier), Danny Lasante (the fuel truck driver) and Transwest Helicopters – are all listed as defendants.  

“The defendants are all pointing the finger at each other as being responsible,” Aaron says. “…it is now 10 years after the spill, and there’s been no compensation…”

Since launching, the case has had a tortuous path through the court system. It was first certified as a class action suit by a judge in 2017, only to have that decision appealed. When the higher courts directed the trial judge to make changes to his decision, he complied, and recertified the action again – only to have it appealed again. This time, however, the appeal was rejected, and the case allowed to proceed.

“The defendants resisted, over the course of nine years, the certification of the action under the Class Proceedings Act,” notes Aaron. “And they did so after the action was certified by the BC Supreme Court in March 2017. They appealed the order… It was very clear that we had a defined and delineated class on behalf of which we could propose class proceedings.”

Aaron notes nine years on, evacuees are still waiting for compensation for the disruption to their lives, and many are even waiting for reimbursement for their expenses during the 24-hour evacuation.

“They’ve been left to wait, but that’s all right, because they are patient,” he says. “We are willing to do whatever it takes to proceed with this litigation to the point of resolution. After 10 years and two lower court certification orders, and two surviving appeals, we’re still at it, and we are happy to provide notice to the class that the action is now certified, which is readily proceeding to trial.”

The first stage of the civil trial will see the plaintiffs ask the court to determine if any of the defendants owed a duty of care to the people in the class action. If so, the court will be asked to find they were negligent and breached this duty. The court will also be asked if it finds the defendants acted or failed to act in a way to cause the evacuation order, and if that order and water advisory amount to unreasonable interference in the enjoyment of their properties. It will also be asked to find if the defendants caused or contributed to the spill.

“Basically this class action deals with loss of use and enjoyment of property, as well as diminution of property value,” says Aaron.

If the court finds the answer to those questions is ‘yes,’ then the court will be asked to assign liability to the defendants – how much they owe in damages.

Though it’s been ten years since the spill, and another year and a half to go before a judge begins to hear arguments, Aaron says the system is working – and that’s because of community strength.

“This is a story of the power of collective action,” he says. “The Slocan Valley is the perfect sociological substrate for class proceedings because it is a well-integrated community with a strong sense of common purpose, and quite a potent sense of activism and sense of entitlement.”

Defining ‘class’

Anyone who owned, leased, rented or occupied a property in the evacuation zone (about one kilometre on either side of Lemon Creek and the Slocan River, including a section of the Kootenay River at its junction with the Slocan) are automatically part of the class action. They don’t have to do anything to be included. They won’t have to pay legal fees (which will come out of the settlement pot) nor would they be held liable to pay fees if the class action is lost.

Anyone who wants to fight the case on their own has to opt out of the class by notifying David Rosenberg, Aaron’s law partner and class counsel, by August 31. Non-participants won’t be eligible for any compensation from a settlement should they opt out.

More information can be found in a legal notice on page 25 of the June 29 edition of the Valley Voice, or by contacting support@rosenberglaw.ca.

This isn’t the only potential class action suit. A separate action is being contemplated by a local farmer for personal injury as a result of exposure to the spill. That civil action has yet to be registered – it’s using the Kirk action as a “trailblazer,” Aaron says, to settle arguments of fact before proceeding.

By John Boivin, Local Journalism Initiative Reporter

Original Published on Jul 28, 2023 at 13:09

This item reprinted with permission from   Valley Voice   New Denver, British Columbia
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