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One case stayed in Lemon Creek fuel spill but two more court cases left to be heard next week

Timothy Schafer
By Timothy Schafer
November 16th, 2017

Although the court case against the fuel company involved in the Lemon Creek fuel spill five years ago was stayed in Nelson Court recently, the case against the province and the driver of the truck will be heard next week.

The case against Executive Flight Centre Fuel Services Ltd. was stayed in Nelson court Oct. 30, with the company’s lawyer winning a concession that the Crown had taken too long (over 18 months) to disclose its reports and other related data, inhibiting his ability to create a defence.

But in an open letter to Todd C. Gerhart, chief federal prosecutor, Slocan Valley resident Marilyn Burgoon — who first began legal action in the aftermath of the spill — urged other Slocan Valley residents to petition him to appeal the stay of the case.

“The judge erred in this case when the proceeding against Executive Flight Centre Fuel Services Ltd was stayed based on the Jordan ceiling,” she wrote.

Burgoon contended that the Jordan rule of 18 months from charges to trial was never meant to be applied to the type of criminal case falling under the Fisheries Act and Environmental Management Act violations.

“In addition, this rule is being used retroactively as it came after the private prosecution was initiated,” Burgoon stated. “Contrary to what the judge ruled, the Lemon Creek case is an exception and setting such a precedent would limit a thorough investigation of environmental crimes.”

The case continues against the driver and the B.C. government as the driver was not named in Burgoon’s private prosecution so his timeline started with the Crown case. The province did not apply for a stay so this case is still active will be back in court on Nov. 20-23, with two more blocks of time after that (Nov. 27-30 and another week in January).

In addition, the class action lawsuit being pursued by several Slocan Valley residents is still proceeding, said Burgoon, as the Jordan Rule used in the criminal case does not apply to the civil case.

The incident began on July 25, 2013 when a tanker truck was delivering fuel for helicopters fighting a large forest fire in the valley. But after the driver headed up an unmanned forestry road that couldn’t support the truck’s weight, the vehicle and its contents rolled into the creek.

As a result, 33,000 litres of jet fuel spilled into the creek, the Slocan River and the Kootenay River and washed into the soil and the banks of those waterways. The cumulative effect of the spill was the death of numerous fish, and incalculable harm to the rivers’ ecology, Burgoon claimed in her documents filed to the court.

In turn, Executive Flight Fuel Services has contended liability did not rest with them because of the rough and inexact nature of the directions they were given by the province to the delivery point for the fuel.

That did not stop Burgoon from trying to hold them accountable for what played out. In December 2014 B.C. provincial court judge Mayland McKimm approved a charge under Section 36 (provisions that prohibit polluting a waterway) of the Fisheries Act against the province and Executive Flight Fuel Services Ltd. for their role in the massive fuel spill into Lemon Creek.

The act allows for private charges to be laid. However, the evidence must first be reviewed by a judge before a summons to court can be issued.

Burgoon had used the legal counsel of the West Coast Environmental Law Dispute Resolution Fund for her legal case.

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