Canada: Wrong Turn Has Court Certify Environmental Class Action

The claim at the heart of Kirk v. Executive Flight Centre Fuel Services, 2017 BCSC 726 is the first of its kind to be certified as a class proceeding in western Canada. The application for certification arose from a "single-incident mass tort." Unlike a cause of action arising from gradual activity or pollution accumulating over time, the cause of action in this case arose from one discrete incident – the instantaneous release of 35,000 litres of jet fuel into a waterway.

The incident

On July 26, 2013, a fuel tanker truck owned by one of the defendants turned off a highway so that it could supply fuel to helicopters engaged in suppressing a forest fire. It took a wrong turn and, in attempting to turn back, slipped down an embankment and overturned. The tanker spilled approximately 35,000 litres of jet fuel into a waterway. As a result, the Interior Health Authority (the Authority) issued an evacuation order affecting 2,776 properties in the surrounding area. The Authority also issued a "do not use water" order for the surrounding area.

The representative plaintiff sought certification of a class action brought on behalf of "[a]ll persons who owned, leased, rented, or occupied real property on July 26, 2013, within the Evacuation Zone." The defendants included the owner of the fuel tanker and the Province of British Columbia. The claim alleges negligence, nuisance, and Rylands v. Fletcher (i.e. damages arising from the escape of hazardous substances) against each of the defendants.

The decision

After considering each of the mandatory factors in Section 1 of the British Columbia Class Proceedings Act, the Court certified the class action. In particular, the Court made the following findings:

  • The pleadings disclosed causes of action against each of the defendants. It was not "plain and obvious" that the claims would fail.
  • There was an identifiable class. Although the definition of the "Evacuation Zone" was imprecise, it could be further refined leading up to trial.
  • The pleadings raised common issues, including liability for all alleged causes of action, apportionment of liability amongst the co-defendants, and punitive damages. The plaintiff did not seek to certify general damages as a common issue.
  • A class action was the preferable means of resolving the common issues. The Court on this point made the following conclusions:
  • Requiring plaintiffs to proceed through individual actions would be unfair and inefficient given the circumstances. Factors considered by the Court were the complexity of the common legal and factual issues, the magnitude of resources available to the defendants relative to the typical individual class member, and the avoidance of parallel proceedings.
  • A class action in this case would advance the goal of behaviour modification "by using the tort system to encourage environmental responsibility."
  • A class action was the preferable means of proceeding given that "[q]ualitatively the common issues are critical and predominate" relative to the individual issues.
  • Mr. Kirk was a suitable representative plaintiff. He was a retired resident of Winlaw, B.C. who owned and lived on a 51-acre rural property bordering one kilometre of the east side of the affected Slocan River.

Future environmental emergencies

This decision may have implications for future defendants facing claims in respect of spills or other environmental emergencies, in that it is possible for single-incident claims to be certified as class proceedings. This precedent could provide plaintiffs with leverage against potential defendants, since class actions can offer certain advantages to plaintiffs in British Columbia. For example, class actions are "costs free" in British Columbia. Class actions may also be limited to liability issues, leaving damages to be assessed in future proceedings. This can offer procedural advantages to plaintiffs in cases like Kirk, where it might be easier to establish liability than actual damages.

The defendant Executive Flight Centre Fuel Services Ltd. has since filed a Notice of Appeal challenging the Court's certification order in Kirk. Despite the low threshold for certification, defendants have, in the past, successfully appealed certification decisions. For example, in Canada (Attorney General) v. MacQueen, 2013 NSCA 143, the Nova Scotia Court of Appeal overturned a certification order granted to property owners bringing environmental tort claims against a nearby steel producer. The outcome of any subsequent proceedings in Kirk will be of interest to defendants looking to navigate the shifting legal landscape of environmental tort law in British Columbia.

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