The Supreme Court of Canada decided last week that it will not hear an appeal by Slocan Valley resident Robert Kirk in his class action suit related to a 2013 fuel spill.
But that does not mean the case is dead, according to Kirk’s lawyer.
In 2017, the Supreme Court of B.C. gave the go-ahead to the class action suit on behalf of all residents affected by pollution from the Lemon Creek fuel spill. In other words, the court certified the case as a legitimate class action that could be tried.
In a class action lawsuit, the complainants do not need to be individually signed on to the suit or be named in it. In this case, Kirk is pursuing the case on behalf of everyone in the area who was evacuated after the spill.
This case is entirely separate from one in which the federal government prosecuted the fuel company, the province, and the fuel truck driver. Both cases stem from an incident in 2013 when a tanker truck overturned into Lemon Creek, spilling 33,000 litres of jet fuel.
After the Supreme Court of B.C. certified the case as a class action, the defendants – the provincial government, Transwest Helicopters, fuel truck driver Danny LaSante, and fuel truck owner/contractor Executive Flight Centre – appealed that decision to the B.C. Court of Appeal.
The Court of Appeal decided some of the issues presented by Kirk were acceptable for certification as a class action, while others were not. It limited the issues that could proceed on a class wide basis.
Kirk sought leave to appeal that decision to the Supreme Court of Canada, which turned town the application last week. This means the court declined to hear the appeal, but did not rule on the merits of the class action.
The Supreme Court of Canada sent the matter back to the B.C. Supreme Court to determine how the case should proceed.
“The case is still alive,” Kirk’s lawyer David Aaron told the Star. “The question of certification remains a live issue before the courts.”