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NEGLIGENCE - Duty of care - Apportionment of liability

Thursday, May 23, 2019 @ 8:26 AM  


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Appeal by the defendant Thompson Fuels from the trial decision, the post-trial ruling, and the costs awards. Appeal by the plaintiff from the trial decision finding the plaintiff 60 per cent negligent. The plaintiff sued the defendants in negligence for damages caused by an oil leak after Thompson Fuels delivered fuel oil to the plaintiff’s home. The plaintiff discovered the leak approximately one hour after the oil was delivered and spent the night collecting it in containers. He incorrectly thought he collected all the leaking oil. Hundreds of litres of oil leaked. Nearly $2 million was spent on remediating the contaminated land in the surrounding area and the damage to a lake. The plaintiff’s house was demolished as part of the effort to remove contaminated soil. The manufacturer of the oil tanks entered into a Pierringer agreement with the plaintiff at the commencement of trial. The trial judge found Thompson Fuels was negligent but that the Technical Standards and Safety Authority (TSSA), was not. The trial judge found Thompson Fuels breached its duty of care by failing to perform a comprehensive inspection of the fuel oil tanks and by failing to test the tanks for water during its service calls. The judge could not find that either the TSSA inspection or the subsequent delineation order fell below the standard of care as the judge was not provided with evidence of the standard of care required of a TSSA inspector. He found the plaintiff negligent for the improper installation of the fuel oil tanks, failure to maintain the tanks by having them inspected annually, improper introduction of water into the tanks, and failure to promptly report the leak. In a post-trial ruling, the trial judge held that Thompson Fuels did not have a right of set-off against the amount paid to the plaintiff under the Pierringer agreement.

HELD: Appeal allowed in part. A small adjustment was made to the damages awarded. In assessing Thompson Fuels’ liability, the findings made were open to the judge on the evidence. He demonstrated a proper understanding of the principles of negligence, including causation. He also properly exercised his gatekeeper function in admitting expert evidence. The trial judge correctly concluded that Thompson Fuels could not avoid liability based on its standard form contract. In assessing the TSSA’s liability, the trial judge correctly concluded that the TSSA owed the plaintiff no private law duty of care, other than conducting an inspection with reasonable care. Without expert evidence regarding the standard of care of a prudent TSSA inspector, the plaintiff and Thompson Fuels failed to meet their onus to establish liability on the part of the TSSA. The trial judge properly found the plaintiff failed to take reasonable steps in the circumstances. The trial judge carefully considered the comparative blameworthiness of the parties and concluded that much of the responsibility for the loss was the plaintiff’s. The apportionment of damages was entitled to significant deference. The trial judge conducted a detailed analysis of the remediation costs, mindful that damages should be awarded on the principle that best ensured that the environment was returned to its pre-contamination condition. The assessment of damages was correct but for the award of damages to pay out a line of credit secured against the property. That was a betterment and was set aside. The trial judge did not err in failing to reduce the amount awarded against Thompson Fuels by the amount of the settlement. There was no double recovery until the plaintiff had been fully compensated for his loss. There was no basis for appellate interference with the trial judge’s costs award.

Gendron v. Doug C. Thompson Ltd. (c.o.b. Thompson Fuels), [2019] O.J. No. 1865, Ontario Court of Appeal, C.W. Hourigan, B. Miller and D. Paciocco JJ.A., April 12, 2019. Digest No. TLD-May202019007