Written By Venetia E.K. Whiting, Julia E. Schatz, Laura J. Freitag and Ceilidh Mulder
Gendron v Thompson Fuels et al provides a cautionary tale for homeowners hoping to "handle things on [their] own". In this case, the plaintiff-homeowner attempted to clean up a domestic fuel oil spill with Tupperware containers, and was found contributorily negligent in the process.
Judgment was granted in favour of the plaintiff, Wayne Gendron, against the defendant, Thompson Fuels. However, Gendron was apportioned 60 percent of the liability, due to a series of negligent actions that facilitated the fuel oil spill and the resulting damages. Thompson Fuels was found only 40 percent liable.
This same fuel oil spill has already been the subject of other extensive litigation in the Ontario Superior Court. In The Corporation of the City of Kawartha Lakes v Director, Ministry of the Environment,1 the court upheld the Ministry of Environment and Climate Change's order against the City of Kawartha Lakes to clean up the fuel oil spill on municipal property, despite the fact that the City had "no responsibility whatsoever for the contamination" of its property.2
This case is a warning for homeowners hoping to handle oil spills on their own, and emphasizes the importance of immediately reporting oil spills to the Spills Action Centre.
Gendron owned a house near Sturgeon Lake, which was heated by an oil furnace supplied by two oil tanks that he had installed in the basement of his home without the help of an Oil Burner Technician. In December 2008, Gendron smelled and noticed oil pooling on his basement floor. The oil tanks had been filled shortly before the pooling with 700 litres of fuel delivered by Thompson Fuels.
Gendron cleaned up what he thought was the extent of the spill in Tupperware containers (to the tune of seven jerry cans full) and carried on with his day.
It later became apparent that more oil had leaked from the tanks than Gendron originally anticipated. The oil made its way to a crack between the basement wall and the floor, leaching into the soil under his house. The oil also made its way through a drainage system under Gendron's house into Sturgeon Lake, causing oil damage to around 300 metres of shoreline.
Remediation of the contaminated soil under the house and the oil on the shores of Sturgeon Lake took over a year and cost close to $2 million. Over 70 tonnes of contaminated soil and gravel was removed from under Gendron's house and disposed of. The house was demolished in the process.
Gendron sought damages for the remedial expenses, alleging Thompson Fuels, which acted as both fuel supplier and service technician, was negligent in failing to properly inspect the oil tanks, which caused the spill and the subsequent damages. Thompson Fuels argued that, based on Gendron's conduct, he was solely or primarily responsible for the loss.
Contributory Negligence and Allocation of Fault
This case is a unique apportionment of fault between the parties. The immediate cause of the leak was determined to be internal corrosion caused by build-up of water and sludge inside the tank, resulting in acidic corrosion of the tank. The court ultimately held in favour of the plaintiff, finding Thompson Fuels negligent in causing the leak as it had failed to conduct the legally required comprehensive inspection of the tanks and did not do dip tests to check for water in the tanks.
Section 3 of the Negligence Act,3 authorizes a court to "apportion the damages in proportion to the degree of fault or negligence found against the parties respectively."
Here, the court found that Gendron's contribution "was not a minor inadvertent lapse, but a series of actions that contributed to the leak and increased the damage"— namely, by:
- improperly installing the tank, which, at the time of its installation in 2000, ought to have been installed by a person holding an Oil Burner Technician Certificate;
- failing to maintain the tank through mandatory annual inspections, as required under section 19 of Ont. Reg. 213/01 (Fuel Oil);
- improperly adding water into the incident tank (causing internal corrosion), likely through introducing less expensive stove oil through the use of jerry cans; and
- failing to promptly report the leak to Thompson Fuels' 24-hour emergency hotline, which would have greatly reduced the quantity of oil that escaped, as well as the resulting damages (when Gendron finally called Thompson Fuels, it was to complain about the quantity of fuel they had delivered, claiming he had been "short changed").
Of additional note was the court's findings on the contractual argument by Thompson Fuels and negligence argument by Gendron against the TSSA.
Thompson Fuels tried to rely on its exclusion of liability clause in its standard terms and conditions. The court rejected that argument. The court found that the clause was inapplicable because Thompson Fuels breached its regulatory obligations, and the exclusion clause did not specifically exclude liability resulting from a failure to perform a regulatory obligation. Additionally, the court also found that, even if the clause did apply, it would also be unconscionable and contrary to public policy to allow Thompson Fuels to use an exclusionary clause in a consumer contract to escape liability for failure to perform its regulatory obligations.
The court did not accept Gendron's argument that the TSSA was negligent. Applying the Cooper/Anns test,4 the court determined that the TSSA inspector owed a prima facie duty to Gendron to conduct its inspection of the spill with reasonable care. Notably, the court did not find that the TSSA breached its duty to Gendron. The court, however, did express views that the TSSA was not "a model of efficiency or clarity", calling its letter to Gendron "confusing and unhelpful".Ultimately, this case is a cautionary tale against "doing it yourself"—installing fuel oil tanks and managing an oil spill are not examples of such activities.
1 2012 ONSC 2708
2 The City of Kawartha Lakes later appealed the order but the Court of Appeal upheld the Divisional Court’s decision and dismissed the appeal.
3RSO 1990, c N.1.
4 Eliopoulos Estate et al v Ontario (Minister of Health and Long-Term Care) (2006), 82 OR (3d) 321 at paras 9-10 (CA), quoting Cooper v Hobart, 2001 SCC 79 at paras 30-31.