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Homeowners’ Contributory Negligence for Fuel Oil Tank Leak Affirmed by Court of Appeal

4 minute read

In a recent judgment in Donleavy v. Ultramar Ltd.,1 the Court of Appeal for Ontario upheld a trial judgment that two homeowners’ negligence contributed to an oil spill from a fuel oil tank on their property and that they were 40% responsible for their own damages and losses. This case is of significance to providers of inspection services and owners of systems requiring inspection alike.

Following an oil spill from a fuel oil tank on their property, the plaintiff homeowners brought an action against the fuel supplier, Ultramar Ltd. as well as the oil tank inspection subcontractor, Kilpatrick Fuels Ltd. and its employee. The trial judge found the defendants liable in negligence for breaches of the standard care of their obligations under the regulatory regime.

The trial judge went on to consider whether the homeowners were also negligent and whether this negligence contributed to the leak and their resulting damages. Section 19 of the Fuel Oil Regulation (O. Reg 213/01) to the Technical Standards and Safety Act, 2000, S.O. 2000, c.16, provides that “[N]o person shall operate or permit to be operated an appliance or tank system unless it is maintained in a safe operating condition and it complies with this Regulation.” The trial judge held that “[d]espite the heavy onus on individuals and operators working within the fuel industry, [the homeowners] were not entitled to sit back and do absolutely nothing towards the maintenance of their fuel oil-burning heating system.”2

The trial judge found that the homeowners were in a financial position to afford annual maintenance for the heating system and frugality was not a valid justification.3 The trial judge also rejected the homeowners’ insistence that they had no knowledge of any requirement to maintain the system and they relied entirely on the fuel supplier to inform them of anything that needed to be done to the system.The trial judge observed that both plaintiffs had previously owned properties that included fuel oil-burning systems and it was thus incomprehensible that neither of them would have had any appreciation of the inspection of regular maintenance of such a system. Accordingly, the trial judge concluded the homeowners had failed to comply with their regulatory obligations and failed to act as a reasonable person would in the circumstances.5 Their negligence “materially contributed” to their injuries and losses.6

In apportioning liability between the defendants and the plaintiffs, the trial judge assessed the homeowners’ responsibility as following “somewhere between being in the driver’s seat and a minor, inadvertent lapse.” She held the homeowners 40% liable for their own damages.7

On appeal, the Court of Appeal observed:

A decision respecting apportionment of liability is entitled to considerable deference. Interference on appeal requires a demonstrated error in the trial judge’s apportionment of the facts or applicable legal principles…the apportionment of liability removes a highly fact-specific exercise that is not an exact science.8

The Court of Appeal concluded that the decision on contributory negligence reflected “a fair assessment of the duties and responsibilities of the respondents as owners of the tank” considering their regulatory obligations and their previous ownership of homes with fuel oil-burning heating systems.9

The Court of Appeal referred to the trial judge’s emphasis that each annual inspection, if conducted by the homeowners, would have provided an opportunity to identify the tank was non-compliant and the potential to avoid the later oil spill.10

An important takeaway from these decisions is the obligation placed on homeowners to take reasonable care to inspect and maintain fuel oil-burning heating systems. Although primary responsibility may lie with those in the fuel industry, homeowners cannot sit back and do nothing to maintain their heating systems and still expect full recovery of their damages when things eventually go wrong. This could be applied in future to businesses or other owners of such heating systems with opportunity for different apportionment of responsibility depending on the circumstances.

[1] Donleavy v. Ultramar Ltd., 2019 ONCA 687.
[2] Donleavy v. Ultramar Ltd., 2017 ONSC 7438, at para 168.
[3] Donleavy v. Ultramar Ltd., 2017 ONSC 7438, at para 169.
[4] Donleavy v. Ultramar Ltd., 2017 ONSC 7438, at paras 170-171.
[5] Donleavy v. Ultramar Ltd., 2017 ONSC 7438, at para 173.
[6] Donleavy v. Ultramar Ltd., 2017 ONSC 7438, at para 173.
[7] Donleavy v. Ultramar Ltd., 2017 ONSC 7438, at para 178.
[8] Donleavy v. Ultramar Ltd., 2019 ONCA 687, at para 104.
[9] Donleavy v. Ultramar Ltd., 2019 ONCA 687, at paras 109-110.
[10] Donleavy v. Ultramar Ltd., 2019 ONCA 687, at para 111.

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