In the latest twist in a long-standing saga, the Superior Court of Justice has ruled partially in favour of a landowner upon whose property in Kawartha Lakes an oil spill.
In mid-December, 2008, Thompson Fuels (“Thompson”) delivered 700 litres of fuel oil to the residence of Wayne Gendron. The oil leaked from the storage tanks filled by Thompson. Some of the oil eventually migrated under the Gendron property and, through a drainage system under the house and municipal culvert controlled by the City of Kawartha Lakes (“Kawartha Lakes”), into Sturgeon Lake, located across the street from the Gendron property.
The spill required almost $2 million to remediate, necessitated the demolition of the Gendron property, and sparked a host of litigation proceedings. Mr. Gendron was ordered by the Ministry of the Environment and Climate Change (“Ministry”) to clean up the spill. Once his insurance was exhausted, although not responsible for causing the spill, Kawartha Lakes was ordered by the Ministry to continue the remediation. Kawartha Lakes unsuccessfully contested the order at the Environmental Review Tribunal and, subsequently, Divisional Court and the Court of Appeal.
Kawartha Lakes sought to recover its costs against Thompson, Mr. Gendron, and the Technical Standards and Safety Authority (“TSSA”) using its powers under section 100.1 of the Environmental Protection Act.
In this most recent development, in Gendron v Thompson Fuels, 2017 ONSC 4009, the Court was asked to determine whether the TSSA, les Resevoirs D’Acier de Granby Inc (“Granby”), who was the manufacturer of the tank that leaked, and Thompson were liable to Mr. Gendron for damage caused by the spill.
The Court dismissed Mr. Gendron’s claims against the TSSA and Granby. And although it granted judgment in favour of Mr. Gendron, the Court apportioned liability for the spill between Mr. Gendron and Thompson at a respective ratio of 60:40.
The Court found that Thompson had not conducted a comprehensive inspection at the Gendron residence as required by regulation, and this had contributed to the spill. The Court refused to allow Thompson to rely upon an exclusionary clause in its consumer contract with Mr. Gendron that would effectively allow Thompson to escape liability for failing to perform the required inspection.
In terms of Mr. Gendron’s responsibility, the Court found that had delayed in reporting the spill to both Thompson and the Ministry’s Spills Action Centre for almost a day, preferring instead to attempt to clean it up and contain it himself. The evidence before the Court suggested that had he reported promptly, much of the oil could have been contained before escaping under the house and reaching the lake. Mr. Gendron also failed to properly maintain the tank and had likely introduced water and microbes into the tank, thus contributing to the development of rust, when he filled the tank with stove fuel from jerry cans.
The circumstances of this extensive case history demonstrates, once again, the importance of promptly reporting spills so that they can be quickly attended to and so as to minimize the possibility of liability.