Stein Pedersen

The appellants appealed a trial judgment finding them liable for a fuel oil spill at the respondents' home.

The trial judge found that the appellants negligently failed to identify that the respondents' fuel oil tank, which was labelled for indoor use, was installed outdoors, and failed to tag it as non-compliant.

The appellants argued the trial judge erred by applying the 'material contribution' test for causation instead of the 'but for' test.

The Court of Appeal dismissed the appeal, holding that while the trial judge articulated the wrong test, she effectively applied the 'but for' test by finding the spill would not have occurred if the appellants had fulfilled their regulatory obligations.

The Court also upheld the trial judge's apportionment of liability, finding of contributory negligence, and damages assessment.

The plaintiffs suffered a residential fuel oil spill when their outdoor tank, which was labelled for indoor use, corroded and leaked.

They sued their fuel oil supplier, Ultramar, and its sub-contractor, Kilpatrick Fuels, in negligence and breach of contract.

The court found that the defendants breached the standard of care under the Technical Standards and Safety Act regime by failing to properly inspect, tag, and mandate the replacement of the non-compliant tank.

However, the court also found the plaintiffs contributorily negligent for failing to maintain their heating system.

Liability was apportioned 60% to Ultramar and 40% to the plaintiffs, with Ultramar entitled to 50% contribution from Kilpatrick.

The plaintiffs were awarded agreed subrogated damages of $750,000 and general damages of $30,000.