Case information

Torts — Negligence — Duty of care — Breach of Regulation — Contractual exclusion clause —Contributory negligence — Apportionment of liability — Assessment of damages — Pierringer settlement agreement ? Inspection of oil tanks ? Fuel oil leakage leading to an environmental contamination of soil and lake — Remediation — Should plaintiffs benefit from any excess from partial settlement regardless of their contributory negligence and the full satisfaction of their claim against the defendants — Whether the legal framework for comparative blameworthiness and apportionment of fault, including the relevant factors for assessment, should be consistent across provinces — Whether courts should address the failure of the homeowner to take reasonable steps under contributory negligence or/and mitigation of damages in the context of environmental contamination — Whether courts can determine negligence based upon noncompliance with regulatory or code requirements and not address the underlying reasonableness of any non compliance — Whether the trial judge has an ongoing duty to gatekeep expert opinion that lacks sufficient objectivity and impartiality even beyond the qualification stage — Whether contractual exclusions are enforceable where regulatory non compliance is found but the exclusions are not rooted in non compliance and whether unconscionability and public policy should be assessed on the date that the contract was formed — Whether the trial judge filled its duty to provide adequate reasons.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

On December 18, 2008, the applicant, Thompson Fuels delivered 700 litres of oil to the respondent Wayne Allan Gendron. Almost immediately after the delivery, the oil leaked from one of the two tanks that Mr. Gendron had installed himself. The leak was discovered by Mr. Gendron approximately one hour after the oil was delivered. He collected approximately 100 litres of fuel oil in Tupperware containers while some of it remained and soaked into the soil. The rest of the oil found its way to a lake nearby through a drainage system located under Mr. Gendron’s home and then through the city’s culvert. The Ministry of Environment (MOE) Spill Action Centre, informed of the leak, sent a report to the Technical Standards and Safety Authority responsible for the provincial regulation of fuel oil distribution. On December 22, 2008, a fuel safety inspector reviewed the report and did a visual inspection of Mr. Gendron’s property. On December 24, 2008, the inspector ordered Mr. Gendron to obtain a professional assessment on the full extent of the spill’s impacts to both soil and groundwater. On December 29, 2008, Mr. Gendron reported the matter to his insurer who retained an independent adjuster and remediation contractor. When informed by the contractor that the oil entered the lake nearby, the MOE ordered Mr. Gendron to undertake remediation. The on site remediation, which included the demolition of the house, was carried out until July 2009. The cost of the off site remediation ultimately reached close to $2 million. Mr. Gendron was eventually ordered to compensate the City of Kawartha Lake which had to complete remediation when Mr. Gendron’s off site insurance coverage was exhausted. On July 15, 2009 Mr. Gendron filed proceedings against Thompson Fuels and two more defendants for negligence. The Ontario Superior Court of Justice granted the action against Thompson Fuels. The Court of Appeal dismissed the appeals filed by Thompson Fuels and Mr. Gendron with the exception of granting a reduction in the damages equal to the amount paid in relation to Mr. Gendron line of credit.

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