Vancouver British Columbia - A bid to certify a class-action lawsuit against Canadian Pacific Railway, Canadian National Railway, and others for damages caused by a wildfire that destroyed the Village of Lytton was rejected Wednesday.
 
However, BC Supreme Court Chief Justice Christopher E. Hinkson ruled the plaintiff could amend the case by rectifying deficiencies.
 
In order to pass the threshold to be certified as a class-action lawsuit, where the interests of two or more people are represented, the case must meet standards of cause, common interest, define the classes of people represented, and how the case will be carried out.
 
"It may be possible to certify a class action if the plaintiff can cure the deficiencies in his pleadings," said Hinkson in his 89 page ruling.
 
"For these reasons, the plaintiff's application to certify the class action is dismissed on the present pleadings, but with leave to amend his pleadings."
 
On 30 Jun 2021 a fire ignited near a rail line spread to the small BC interior town and surrounding area, including to an adjacent First Nation community.
 
About 90 percent of the town was destroyed and two people were killed.
 
That day temperatures had reached nearly 50 C during a province-wide extreme heat event, dubbed a heat dome.
 
About 250 people were displaced by the fire and more than two years later, the town has still not been rebuilt.
 
The lawsuit is being represented by Jordan Spinks, chief of the Kanaka Bar Indian Band.
 
Another representative plaintiff, Christopher O'Connor, recently died and is no longer part of the lawsuit.
 
The legal action is being brought on behalf of all individuals, or their estates, who suffered personal injury or death in the fire, and all individuals who were displaced by the fire, or who suffered property losses.
 
Anthony Vecchio, of Slater Vecchio, representing Spinks and others in the potential class action, said they appreciated the opportunity to amend their pleadings.
 
"We remain confident that a class action is still the best avenue to represent the interests of the affected individuals. We are working diligently to refine our pleadings and address the deficiencies identified by the court," said Vecchio.
 
The plaintiffs have alleged that the wildfire was caused or contributed to by the negligence of various defendants, including Canadian Pacific, Canadian National, and Transport Canada, who they argue failed to minimize fire risk in fire prone areas of BC, including in and around Lytton, by failing to ensure the area where the wildfire started was cleared of organic material and other fuel sources, and ensure that the regular operation of trains was unlikely to spark a fire.
 
Spinks has stated in the notice of civil claim that he witnessed smoke and flames on CN Rail's right-of-way, at or near, CN's bridge that crosses the Fraser River.
 
He had just finished his shift as a care aide at an assisted-living facility and lost his job because of the fire, says the lawsuit.
 
Canadian Pacific Railway has argued that the case doesn't meet the threshold for a class-action suit, including that there is no evidence that any train caused or contributed to the wildfire.
 
CN and the Attorney General of Canada, on behalf of Transport Canada, made similar arguments.
 
The rail companies had pointed to a report by the Transportation Safety Board of Canada that concluded there was no link between train operations and the fire.
 
However, Hinkson said he put no weight on that report in determining whether the suit met the threshold for class action.
 
He also dismissed expert reports from the plaintiffs, which concluded it is possible to determine the cause of the wildfire and that there is some information that could help determine whether the defendants played a role.
 
"Reports that opine that it would be possible to determine if the defendants caused the wildfire are of marginal probative value given that there is no basis in fact for the assertion that the defendants caused the fire in the first place," said Hinkson in his ruling.
 
Gordon Hoekstra.