The company whose truck spilled 33,000 litres of jet fuel into Lemon Creek during a firefighting operation in the summer of 2013 is suing the provincial government and Transwest Helicopters Ltd. for negligence and breach of contract.
Executive Flight Centre Fuel Services Inc. filed the action in BC Supreme Court on July 3.
The Calgary- based company provided the fuel for the firefighting operation under contracts with the provincial government and Transwest Helicopters.
The lawsuit claims the province and Transwest gave Executive Flight Centre’s driver incorrect directions to its helicopter staging area, mistakenly telling him to use Lemon Creek Rd.
“Lemon Creek Rd. had become dangerous,” the statement of claim reads. “The province failed to properly maintain or monitor it. It was situated along the bank of Lemon Creek. As a result of flooding and/or erosion by Lemon Creek, the bank of the creek on which the road stood has been undercut making the road unsafe for travel. The province was aware that Lemon Creek road had been undercut by Lemon Creek and had taken no steps to fix, remediate, repair, or close it.”
The document also states the government and Transwest knew Lemon Creek Rd. was not the correct route to the staging area, but didn’t provide signage or any instructions to direct the driver.
The action comes on the heels of two other court cases connected to the spill.
Slocan Valley resident Marilyn Burgoon has launched a private prosecution against Executive Flight Centre and the provincial government, alleging they violated the federal Fisheries Act by polluting a stream. She has taken this action in the absence of any prosecution by the federal fisheries department.
Responding to news of this new lawsuit, Burgoon said she wasn’t surprised.
“I know there is always finger-pointing in cases as to who is responsible but I will leave it to the judge in the Fisheries Act case I have going forward. We did name both parties and both have responsibility here.”
Burgoon’s lawyer, Lilina Lynsenko, said she wasn’t surprised either.
“It is helpful for us,” she said, “because as a private prosecutor Marilyn has very limited [investigation] methods and can’t execute search warrants, so the more that comes to light as a result of other actions the more helpful it would be for her.”
Lysenko explained there are fundamental differences between the two cases. Burgoon’s is a criminal prosecution, taking place in provincial court, and Executive Flight Centre’s is a civil suit in BC Supreme Court.
She said the cases have different standards of proof. Because Executive Flight Centre’s case is a civil case they have to prove their case on a balance of probabilities. In Burgoon’s criminal case, she has to present proof beyond a reasonable doubt.
“[Burgoon’s] is strict liability, so we just have to prove that it happened,” Lysenko said. “[In Executive Flight Centre’s case, the defendants] need to prove they could not have reasonably foreseen it, not have reasonably been expected to prevent it.
“It is a different legal test. Marilyn has to prove it happened, but they [Executive Flight Centre] have to prove there was a duty of care and the defendants breached it and as a result, Executive Flight suffered some financial injury.”
As for that financial injury, Executive Flight Centre is claiming expenses related to its clean-up efforts (which it previously pegged at $4 million), recovery of any liability it may incur in Burgoon’s prosecution or in a class action suit, any losses alleged by other claimants resulting from the spill, as well as general damages and business loss.
The class action suit, filed by Robert Kirk on behalf of 2,776 property owners, will come before a judge next year. The defendants are Executive Flight Centre, its driver Danny LaSante, the provincial government, and Transwest.
A class action suit is filed by a group of people rather than an individual. But before it can come to a hearing, a judge has to decide whether the case is procedurally appropriate as a class action or as an individual action, which is what will be decided at a September 2016 court date.
In addition, the provincial government is attempting, through the environmental appeal board, to recover $127,161 for the costs of cleaning up the spill from Executive Flight Centre and LaSante.
Summary of Lemon Creek lawsuits
• Private prosecution under the Fisheries Act
Private prosecutor: Marilyn Burgoon
Accused: The provincial government and Executive Flight Centre
Asking for: A conviction under the Fisheries Act
Status: Trial date set for April 2016
• Civil lawsuit
Plaintiff: Executive Flight Centre
Defendants: The provincial government, Transwest Helicopters
Asking for: Damages due to negligence and breach of contract
Status: Initial claim filed, no court dates yet
• Class action lawsuit
Plaintiff: Robert Kirk, on behalf of 2,776 landowners in the Slocan Valley
Defendant: The provincial government, Transwest Helicopters, Danny LaSante, and Executive Flight Centre Fuel Services Inc.
Asking for: Damages for loss of use of property and diminution of property values, and punitive damages.
Status: In September, 2016, there will be a certification hearing to determine whether the case will proceed as a class action or an individual action of Robert Kirk.
• Appeal of government claim for reimbursement
Applicant: Executive Flight Centre, Danny LaSante
Respondent: Provincial government
Asking for: Overturning of a government decision to force the applicants to pay the government’s clean-up expenses
Status: Before the Environmental Appeal Board, dates unknown
UPDATE: on July 20, this story was updated to correct two errors in the Class Action Lawsuit bulleted paragraph above. The changes were to the “Asking for” section and the “Status” section.