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New fuel tanks leak because our safety standards are too lax, according to the Ontario Superior Court of Justice. In Muskoka Fuels v Hassan Steel Fabricators, the plaintiff petroleum distributor purchased a fuel tank manufactured by Hassan.  Diesel oil leaked from the tank into a bog less than 5 months after installation.   The tank had been properly installed and used as intended; experts agreed that internal corrosion caused a hole (the tank lacked a protective interior coating).  The plaintiffs sued in negligence.

Madam Justice Healey slammed lax legislative standards for tanks, noting that the regulation itself clearly did not protect against  potential harm, and stating (at para 34) that she hoped “that this judgment will find its way into the hands of the regulators of this industry given the potential for environmental harm if the specifications for such tanks are not changed to better guard against corrosion by MIC.” (MIC = microbally induced/influenced corrosion).

At para 40, the court noted that “… while legislative standards are relevant to the common law standard of care, if the regulation itself clearly does not protect against the potential harm and does not require the manufacturer to meet the standard of care that is required to avoid that harm, the regulation itself should in my view not be relied upon as being an answer to the question of negligence…”, citing Ryan v. Victoria (City) ([1999] 1 S.C.R. 201 – link to this case athttp://www.canlii.org/en/ca/scc/doc/1999/1999canlii706/1999canlii706.html )

The plaintiff was awarded $71,589 plus prejudgment interest (from June 2004 to December 2009) and post-judgment interest thereafter.

by Jackie Campbell

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