One Wrong Turn

by Bennett Jones LLP
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The road to the first class action against the Province of British Columbia

On May 3, 2017, the Honourable Justice Masuhara, of the British Columbia Supreme Court, certified the province’s first environmental class action against the Province of British Columbia in Kirk v Executive Flight Centre Fuel Services, 2017 BCSC 726. The action concerns the July 27, 2013, spill of 35,000 litres of jet fuel from an overturned tanker into Lemon Creek, located in the Slocan Valley area of British Columbia and into connected waterways. This led to an evacuation order and a water ban being issued by the Interior Health Authority.

The tanker truck was part of the province-led refueling operation (of Executive Flight Centre Fuel Services) for firefighting helicopters (provided by Trans West Helicopters Ltd.) for a wild fire on Perry Ridge in the Slocan Valley. The driver of the truck (Danny LanSante) took a wrong turn and in an attempt to turn the tanker around, the truck fell down an embankment and overturned into Lemon Creek.

The plaintiff class alleges that the Province of British Columbia caused the spill with its operational mismanagement, including by further disseminating the contamination by use of water bombers. The claim also asserts that the government exacerbated the spill’s effect by failing to adequately respond, leading to prolonged suffering for local residents. The plaintiff claims for negligence, nuisance and the rule in Rylands v Fletcher resulting in property damage, including contamination due to vapour and sludge arising from the fuel in the streams, elimination of sole sources of potable water on some properties and the diminution of market value for all properties in the area evacuated. They further claim interference with quiet enjoyment, stating homes remain uninhabitable, farms unusable, commercial undertakings closed down and constant and continuous exposure to toxins. Of note, a separate class action has been commenced by the plaintiff for personal injuries arising from the spill.

Certification and the Province’s Arguments

Certification of the claim as a class action was vigorously contested by the Province on multiple levels.

Different interests – the Province argued that the pleadings did not disclose causes of action that are available to all proposed class members, or, in some instances, the cause of action has no chance of success for any class member (e.g., the Rylands v Fletcher claim). It stated that proposed class members have different interests based on facts such as the location of their real property, as well as whether they are owners, tenants or simply users of the private property in the affected area at the material time.

Material improvements – The Province asserted that a class proceeding involving a trial of the common issues would not materially improve the position of the members of the proposed class in resolving their individual claims. Instead, it would break down into substantial individual trials to determine the many individual issues of each person in order to determine whether there was a valid claim for damages.

Behaviour modification – The Province asserted that the goal of behaviour modification in class proceedings was not relevant in this case as there was no need for denunciation of its conduct. This is not a case of an historical polluter that has made money from cutting environmental corners or taking risks, but rather resulted from a single incident.

Damages – Another key point of contention was the assertion of damages. The defendants argued that it was plain and obvious that the case was bound to fail because of an absence of damages regarding economic losses.

The Court’s Decision

Ultimately, the court was not convinced by the defendants’ submissions and Justice Masuhara granted certification of the action. The court noted that many of the defences put forward were connected to the merits of the claim and a certification motion was not the place for the merits to be adjudicated.

Justice Masuhara held that a class proceeding was preferable in this case: there were sufficiently common issues, and a class proceeding would provide for access to justice and judicial economy. The court was quick to note that “at the heart of this action is [a spill], a single event that is said to have affected a significant part of a community”. The court emphasized that the defendants have greater resources than the typical individual class member and that it would not be fair or efficient for individuals to be required to bring separate actions to obtain redress from the defendants, with potentially inconsistent results. Speaking to the goal of behaviour modification, the court noted that this goal was being advanced by using the common law to encourage environmental responsibility. Finally, the court held that differing types of damages suffered by those within the class is not fatal to certification (as refining or creating subclasses post certification may be considered).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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