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Court of Appeal clears way for Lemon Creek class action trial

Nearly a decade after a truck spilled 33,000 litres of jet fuel into Lemon Creek in the Slocan Valley, the BC Court of Appeal has ruled a class-action lawsuit can proceed to trial.

The case was filed by Robert Kirk as the representative plaintiff, who claimed negligence by the driver, the company he worked for, the helicopter company being supplied with the fuel, and the provincial government. But it has had a torturous path through the courts.

The matter was first certified as a class proceeding in 2017, but two years later the defendants partly won an appeal of certain issues that the first judge was asked to reconsider. The matter was re-certified in 2021 but appealed a second time, as the defendants claimed the judge erred in certain areas.

However, the BC Court of Appeal has now ruled that wasn’t the case, finally clearing the way for the matter to proceed.

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“The appellants argue that individual trials are inevitable, and that there are more individual issues than there are common issues,” Justice Christopher Graeur wrote in the unanimous ruling on behalf of two other judges.

“As a result, they say, the individual plaintiffs have to come forward in any event and little in the way of judicial and financial resources will be saved.”

However, Graeur noted that in a class proceeding, people who were affected by the spill don’t need to come forward until common issues have been decided.

“They can then join in or opt out with no exposure to costs as yet. If the judge rules against the class, they need never come forward and they will have no exposure to costs.”

Kirk complained that he and his daughter woke up to an overpowering fuel odor and a terrible headache the morning after the spill and found an evacuation notice on their door. They left home and returned that evening.

They were among over 2,700 properties ordered evacuated by the Regional District of Central Kootenay. Interior Health also issued orders not to use water from the Slocan River and Kootenay River that were not fully lifted until two weeks after the spill.

After the provincial government declined to bring any charges, another resident, Marilyn Burgoon, began a private prosecution against the fuel company and the province.

Eventually federal prosecutors took over the case and also laid charges against the driver. The province was ultimately acquitted while the fuel company was fined $175,000 and the driver  $20,000.

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