A lawyer representing victims of the 2013 Lemon Creek fuel spill says he is disappointed with the province’s response to their class action lawsuit.
“It is unfortunate that the defendants, including British Columbia, are toying so hard with a class of fuel spill victims over the simple procedural question of whether their claims can be heard together under the Class Proceedings Act” , said David Aaron.
Aaron was in court on September 8, appearing before the British Columbia Court of Appeal for the second time on the question of whether the victims of the fuel spill represented a class of people who could seek damages as a whole. . A judge had already ruled once that it could proceed as a class action, but that was appealed to the higher court. At the instruction of this court, the judge adjusted his decision in May 2021 and recertified the class action – only to be appealed again by the defendants in the case.
“Essentially, the Court of Appeal told the chambers judge to do something, and he did it,” Aaron explains. “And the second call is whether he did it right.”
The original lawsuit stems from the July 2013 spill of 35,000 liters of jet fuel into Lemon Creek by a transport driver making a delivery to a firefighting operation. The spill forced the evacuation of thousands of people living up to 40 kilometers downstream in the Slocan Valley.
The spill also killed fish and forced residents to find alternative sources of drinking water for themselves and their livestock for days. Residents affected by the spill sued for damages. And since then, Aaron says the province and other defendants have used their deep pockets to delay justice for residents seeking damages.
“It’s all about access to justice and judicial economy, and the province knows that,” he told the Valley Voice. “It is disappointing that the province is creating such an uphill climb for residents of the Slocan Valley, who to date, more than nine years after the spill, have not been compensated for their evacuation costs.
“You would think that at least the province would be more supportive of class actions as a way to advance public interest litigation on behalf of an aggrieved community.”
He also says it’s ironic because Kootenay West MP Katrine Conroy was a strong advocate for timely compensation when she was in opposition.
“Now that she is in government, she has been reluctant and apparently has failed to settle this matter on behalf of her constituents,” he says.
The wheels turn slowly
The Court of Appeal could dismiss the second claim before it, allowing the class action to proceed to trial. Or, they could order the lower-level court to make another decision to determine if this is an appropriate class action. In either case, however, the end result is more delays in pursuit.
“The last appeal, hearing date was October 15, 2018, and judgment was given the following April 2019,” he says. “That gives you an idea of how long the court could mull over this matter before issuing a judgment.”
Aaron says they’ve already lost people who pushed the case forward, like Marilyn Burgoon, who started the landmark case in the first place. The community activist died in December 2019.
“The wheels of justice are turning slowly, lawyers are used to it, but I don’t expect the community to accept this and I don’t think they should.”
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