The Slocan River just above Lemon Creek. Lucas Jmieff photo.

Lemon Creek class action suit can proceed, court says

The case is B.C.’s first-ever environmental class action lawsuit

Robert Kirk and 2,500 other people will get their day in court.

The BC Supreme Court on May 3 gave the go-ahead to a class action suit by the Slocan Valley farmer on behalf of all residents affected by the Lemon Creek fuel spill.

This court case is entirely separate from one in which the federal government is prosecuting the fuel company, the province, and the fuel truck driver, which the Star has reported on regularly and which goes to trial in Nelson in the fall.

Both cases stem from from an incident in 2013 when a tanker truck overturned into Lemon Creek, spilling 33,000 litres of jet fuel.

In a class action lawsuit, the members of the class or group do not need to be individually signed onto the suit or be named in it. In this case, Kirk is pursuing the case on behalf of everyone who lived in the area that was evacuated after the spill, seeking damages from four defendants: the province of B.C., Executive Flight Centre (the owner of the truck), Danny LaSante (the driver of the truck) and Transwest Helicopters.

To determine that the case could proceed, Mr. Justice D.M. Masuhara applied four tests: that there was damage caused, that there is an identifiable class of people who suffered it, that the issues were more in common than individual, and that the class action is the best procedure for the fair resolution of the event.

This is the first environmental class action that has ever gone to court in B.C.

The suit, according to a news release from Kirk’s lawyers, “alleges that the Province of British Columbia caused this disaster with its operational mismanagement and then exacerbated this disaster’s effect by failing to adequately respond to the spill, leading to prolonged suffering for local residents.”

The news release states that the province “hotly contested the application to certify this action as a class proceeding, attempting to point blame at its co-defendants, which include the firms with which the Province contracted to execute the refuelling operation. In his reasons for judgement, Justice David Masuhara rejected the Province’s position in its entirety.”

The court documents describe Kirk’s experience the morning of the spill.

“At 5:00 a.m. on July 27, 2013, Mr. Kirk woke up with a terrible headache to the sound of his horse coughing. He had never heard his horse cough before. There was an overpowering odor of fuel. He then found a document attached to his door: a notice of mandatory evacuation issued under the Emergency Management Act.

He immediately got his daughter out of bed and drove to Winlaw firehall where emergency responders confirmed that they had to immediately get out of the Slocan Valley.”

The news release quotes Slocan Valley resident Jim Ross:

“This class-action addresses a preventable tragedy of huge proportions. There has been tremendous suffering: burning eyes, blisters, sore throats, headaches, respiratory distress, and neuromuscular symptoms. Scores of wildlife are dead. People have been displaced from their homes, their farms contaminated, their businesses shut down.”

Kirk’s affidavit in the court documents states that “before the spill his property had an abundance of blue herons, songbirds, ducks, whistling swans, and painted turtles. Since the spill, there are none or nearly none.”

And he describes an almost complete decline in flies, fish, deer, and moose, as well as saskatoon berries uneaten which would have formerly been eaten by wildlife. He said there is also a notable disappearance of mosquitos, bats, butterflies, frogs, and dragonflies.

“Since the spill,” Kirk states in his affidavit, “in my observation, the cattle will not drink around the shoreline of the Slocan River. Rather, to drink from the river, they wade deep into the river up to their bellies. After spending a week on my property, they try to push the fence down and leave.

“Two years after the spill, I started to continually notice that the edge of my property, at the Slocan River, smells like rotting, dead vegetation. The weeds had died. I never saw or smelled that rot prior to the spill.”

Kirk also alleges a deterioration in the state of his personal health and a lowering of the value of his property.

 

Photos taken from Robert Kirk’s property in August 2013 after the spill. Photo submitted