Bingley et al. v. Morrison Fuels, a Division of 503373 Ontario Limited, et al.; D.W. Stanzel Plumbing and Heating Limited et al., Third Parties [Indexed as: Bingley v. Morrison Fuels]
95 O.R. (3d) 191
Court of Appeal for Ontario,
Simmons, Blair and Juriansz JJ.A.
April 21, 2009
Negligence -- Standard of care -- Reasonable foreseeability of harm -- Third party leaving oil tank and oil fill pipe in place when decommissioning [page192] plaintiffs' oil heating furnace in 1979 -- Third party tightening cap on pipe and turning pipe around to indicate that it was no longer in use -- Defendant's employee making delivery to wrong address, turning oil fill pipe around, loosening cap with wrench and pumping oil into it -- Plaintiffs' decommissioned oil tank leaking and oil entering soil and groundwater -- Trial judge erring in finding that third party was not negligent -- Trial judge erroneously considering whether harm could reasonably have been foreseen to occur in particular way it did rather than whether general harm that would result from mistaken delivery was reasonably foreseeable -- Third party's failure to permanently plug oil fill pipe creating reasonably foreseeable risk that oil could mistakenly be pumped into pipe at later time.
In 1979, the plaintiffs hired the third party to decommission their old oil heating furnace and to convert their heating system to natural gas. After removing the oil furnace, the third party left in place the oil tank in the basement and the oil fill pipe and vent located on the exterior of the house. The cap on the oil fill pipe was tightened so that it could not be removed by hand and then turned down towards ground to indicate that the pipe was no longer in use. In 2001, an employee of the defendant misread the address on a delivery ticket, went to the plaintiffs' home, found the oil fill pipe, turned it around, loosened the cap with a wrench and pumped oil into the tank. The tank leaked, and oil entered the soil and groundwater, rendering the house uninhabitable and causing serious environmental contamination. The plaintiffs sued the defendant. The defendant settled that claim and made a third- party claim for contribution and indemnity. The trial judge dismissed the claim. The defendant appealed.
Held, the appeal should be allowed.
Per Juriansz J.A. (Blair J.A. concurring): It was open to the trial judge to find that the method used by the third party in performing the decommissioning job complied with the 1976 Canadian Gas Association Installation Code for Natural Gas Burning Appliances and Equipment and with industry practice in 1979. However, she erred in her approach to the analysis of reasonable foreseeability of harm. She considered whether a mistaken delivery occasioned by the particular chain of events that unfolded in this case was reasonably foreseeable rather than considering whether, in general, harm from a mistaken delivery of oil to the plaintiff's residence was reasonably foreseeable. Only the general harm itself must be reasonably foreseeable, not its manner of incidence. The third party's failure to take the measure of permanently plugging the oil fill pipe created a reasonably foreseeable risk that oil could be mistakenly pumped into the pipe at some later time. Combining reasonable foreseeability with the enormous potential harm and the trifling cost of permanently plugging the fill pipe led to the conclusion that the third party breached the standard of care it owed to the plaintiffs.
Per Simmons J.A. (dissenting): The trial judge concluded that, viewed from the perspective of 1979, there was no reasonably foreseeable risk of a mistaken oil-fill when the third party's conversion method was used because that method protected against the perceived risk of harm created by leaving the oil heating system components in place. This approach to the reasonable foreseeability of harm factor at the standard of care and breach stage of the negligence analysis was legally correct.
APPEAL from the judgment of Ratushny J., [2008] O.J. No. 596, 2008 5958 (S.C.J.) dismissing the third-party claim.
Cases referred to Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co., [1973] S.C.R. vi, 1973 1313 (SCC), [1973] S.C.J. No. 48, 40 D.L.R. (3d) 480, 1 N.R. 32, [1973] 6 W.W.R. 765, affg 1971 959 (MB CA), [1971] M.J. No. 39, 21 D.L.R. (3d) 608, 1 N.R. 34, [1971] 4 W.W.R. 746 (C.A.), apld [page193] Other cases referred to Hughes v. Lord Advocate, [1963] A.C. 837, [1963] 1 All E.R. 705, [1963] 2 W.L.R. 779 (H.L.); Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, EYB 2008-133554, J.E. 2008-1083, 55 C.C.L.T. (3d) 36, 165 A.C.W.S. (3d) 954, 293 D.L.R. (4th) 29, 375 N.R. 81, 238 O.A.C. 130; Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201, [1999] S.C.J. No. 7, 168 D.L.R. (4th) 513, 234 N.R. 201, [1999] 6 W.W.R. 61, J.E. 99-357, 117 B.C.A.C. 103, 59 B.C.L.R. (3d) 81, 44 C.C.L.T. (2d) 1, 50 M.P.L.R. (2d) 1, 40 M.V.R. (3d) 1, 85 A.C.W.S. (3d) 208 Regulations referred to Canadian Gas Association, Canadian Gas Association Installation Code for Natural Gas Burning Appliances and Equipment, CGA B149.1-1976 [rep.], s. 3.3.3 Authorities referred to Klar, Lewis N., Tort Law, 4th ed. (Toronto: Carswell, 2008)
Mark M. O'Donnell and Steven G. Canto, for appellant. Pat C. Peloso and Jennifer L. Guth, for respondents.
JURIANSZ J.A. (BLAIR J.A. concurring): -- I. Overview
[1] The appellants, Morrison Fuels, 503373 Ontario Limited and John McDougall appeal from the judgment dated February 20, 2008 dismissing their third-party claim against the respondents, D.W. Stanzel Plumbing and Heating Limited and Donald Wright Stanzel, for contributory negligence and apportionment of damages. The appellants' third-party claim related to the apportionment of liability for significant residential property damage and environmental remediation costs stemming from an inadvertent oil discharge that resulted from an oil delivery they mistakenly made to the residence of the plaintiffs in the main action, Mary Patricia and Francis Bingley. II. Facts
[2] In 1979, the Bingleys hired Stanzel Plumbing to decommission their old oil-heating furnace and to convert their heating system to natural gas. In so doing, Stanzel Plumbing removed the Bingleys' oil furnace but left in place the oil tank in the basement as well as the oil fill pipe and the vent pipe located on the exterior of the house. Stanzel Plumbing tightened the cap on the oil fill pipe so that it could not be removed by hand and then [page194] turned this pipe down towards the ground to prevent it from being filled in this position and to indicate that it was no longer to be used.
[3] Twenty-two years later, on March 8, 2001, McDougall, an employee of Morrison Fuels, misread a delivery ticket and mistakenly made an oil delivery to the Bingleys' home in Smiths Falls, Ontario. He found the Bingleys' oil fill pipe on the exterior of the house in a downward position with its cap end pointing towards the ground at approximately a 45 degree angle. Erroneously thinking that the oil fill pipe was simply loose, he raised it to a 45 degree angle pointing the opposite way from the position it was in when he first saw it and then loosened the cap with a wrench. He then began pumping oil and heard the usual whistle sound from the vent pipe, which indicated that oil was going into the tank and air was coming out of it. He did not realize his error until he had mistakenly pumped 933.4 litres of furnace oil into the wrong residence.
[4] Unfortunately, the Bingleys' old decommissioned oil tank had rusted and leaked. As a result, oil spilled onto the unfinished basement surface and entered the soil and groundwater. The house was rendered uninhabitable and serious environmental contamination occurred.
[5] The Bingleys brought an action for negligence against the appellants. The appellants admitted their negligence, settled the Bingleys' claim and remediated the Bingleys' property at a total cost of over $1 million. The appellants brought a third- party claim against the respondents, claiming contributory negligence and apportionment of damages based on allegations that the respondents had negligently decommissioned the Bingleys' oil heating system in 1979. The trial judge found that the respondents had not been negligent and, accordingly, dismissed the appellants' third-party claim. The appellants appeal to this court. III. The Reasons of the Trial Judge
[6] The trial judge began by itemizing the many elements of the appellants' carelessness. The oil delivery person, McDougall, had been employed by Morrison Fuels for only two months. Smiths Falls was his hometown. Although he had seen similar down-turned exterior oil-fill pipes in the town before, he did not know nor had he been trained as to their significance. On the day of the incident, he was working in a hurry and mistakenly misread the delivery ticket. The delivery ticket contained information in addition to the address that would have indicated to McDougall, had he taken the time to read it properly, that the Bingleys' home was not the right address. The ticket [page195] also indicated that the exterior vent and oil fill pipes were located at a different corner of the house than where he found them at the Bingleys' house. Further, the ticket indicated that there was no whistle in the vent pipe to indicate that the oil tank had air. The absence of a whistle was unusual and, presumably, warranted extra care to avoid overfilling the intended customer's oil tank. Finally, the ticket indicated that the delivery volume was expected to be approximately 560 litres, significantly less than the 933.4 litres McDougall pumped into the Bingleys' decommissioned oil tank.
[7] The appellants' negligence was not an issue at trial; they had already admitted their negligence and had settled with the Bingleys. Nor was there an issue that the respondents owed a duty of care to the Bingleys when they performed the conversion work. The trial judge observed that the only issue was the measurement of the standard of care expected of Stanzel Plumbing in 1979 for the decommissioning and whether Stanzel Plumbing met that standard. If it did not, it was negligent and contributed to the damages caused by Morrison Fuels' mistaken furnace oil delivery.
[8] In determining the standard of care, the trial judge considered the following factors [at para. 27]:
For Stanzel Plumbing, the question, then, to be asked is what would have been the standard of care expected of an ordinary, reasonable and prudent person in the same circumstances, having regard to the likelihood of a known or reasonably foreseeable harm, the gravity of that harm, the burden or cost which would be incurred to prevent the harm, industry practice and regulatory standards.
[9] The trial judge found that Stanzel Plumbing's method of decommissioning the Bingleys' oil furnace was an accepted industry practice in 1979 and that it complied with the then applicable regulatory standard. In 1979, the governing regulatory requirement was s. 3.3.3 of the Canadian Gas Association Installation Code for Natural Gas Burning Appliances and Equipment, CGA B149.1-1976 (the "1976 Code"):
3.3.3 When the installation of an appliance constitutes a conversion from another form of energy including oil, gas, propane and electricity it shall be the responsibility of the installer to ensure that the means of supply of the other form of energy has either been removed or left safe and secure from accidental discharge. (Emphasis added)
[10] The trial judge also noted that the 1976 Code was amended in 1982 in Ontario to require removal or plugging of the oil fill pipe when converting an oil heating system to natural gas. Stanzel, the owner of Stanzel Plumbing, testified that prior [page196] to the 1982 amendment, if his customers chose the least costly method of conversion, his practice was to leave the vent pipe in its upright position because it could never be filled with oil, but to tighten the cap of the fill pipe so that it could not be turned by hand and to turn the fill pipe towards the ground, usually at a 90 degree angle, as an indication to oil delivery persons that "they should be asking questions before putting oil in through that pipe". Stanzel expressed the opinion that this method complied with the requirement in the 1976 Code to leave a decommissioned heating system "safe and secure from accidental discharge".
[11] John Butler, who also decommissioned oil heating systems as part of his business, was called as an expert witness by the respondents. He testified that prior to the 1982 amendment to the 1976 Code, one of the industry practices in decommissioning an oil heating system, if the old oil tank and piping were not to be removed, was to turn the oil fill pipe down to the ground as a signal to any fuel delivery person. He also expressed the opinion that this practice satisfied the requirement in the 1976 Code of leaving the decommissioned oil system "safe and secure from accidental discharge".
[12] On the basis of this evidence, the trial judge found that the method used by Stanzel Plumbing to perform the Bingleys' conversion work was an accepted industry practice in 1979. She also found that it complied with the 1976 Code, although she noted that the better conversion method would have been to remove or plug the fill pipe. She recognized [at para. 32], however, that these findings were not determinative and that it was still necessary to consider whether the respondents had met "the standard of care that would be expected of an ordinary, reasonable and prudent person in the circumstances, including the reasonable foreseeability of the harm".
[13] I set out below the trial judge's analysis of this issue completely [at paras. 33-34]:
In 1979, industry practice that was Code compliant allowed for tightly capped and turned down oil fill pipes as part of a decommissioning method. The homeowners were able to choose this method and did. Stanzel Plumbing heard of no problem associated with this method. In 2001 a fuel oil delivery was made by a man who, having been trained in the safe handling of "dangerous goods" ignored the most basic safety rule from his training that the fuel was to be delivered to the right address. He never checked to see if he had the right address. He had not been trained as to the significance of down-turned oil fill pipes within his delivery area. Nothing about the state of the residence that he should have noticed had he read the delivery ticket or known of the significance of those down-turned oil fill pipes, served to give him any warning that not only was he at the wrong place, but that place had no fuel oil heating system. He did not ask any questions of [page197] his office when he noticed the down- turned pipe and its very tight cap, even though that option was easily available to him through the use of his two-way phone. He did not seem to understand that moving an oil fill pipe as much as he did, even if this had been at a home that used furnace oil, could cause leaks in the piping system.
The duty of care and the proper performance of its content was an obligation that Stanzel Plumbing owed to the homeowners in 1979. It was not a duty of care that extended to Morrison Fuels or to any other furnace oil delivery company, to save them from making an egregious mistake in the face of all indications to the contrary and delivering furnace oil to a place with no oil furnace.
[14] Based on this analysis, the trial judge concluded as follows [at paras. 35-36]:
In terms of the objective and reasonable foreseeability of this kind of harm, I cannot find that an ordinary, reasonable and prudent tradesperson in 1979 who is aware of and who complies with the Code and whose choice of measures is concurred in by the homeowners would reasonably foresee this kind and degree of mistake and negligence by someone who had nothing to do with the homeowners.
In other words, I find that in exercising its standard of care owed to the homeowners, Stanzel Plumbing could not have reasonably foreseen that a delivery of fuel oil that was not authorized by anyone and that was made in the face of many indicators to the contrary would be made into that tightened and down-turned oil fill pipe.
[15] Having reached these conclusions, the trial judge dismissed the appellants' third-party claim against the respondents. She went on to state, however, that in the event she was wrong and the respondents' failure to remove or permanently plug the oil fill pipe as part of their conversion work for the Bingleys did create a reasonably foreseeable risk that there could be a mistaken delivery of furnace oil into the oil fill pipe, she would have apportioned the liability between the parties as follows: the respondents' fault at 5 per cent; Morrison Fuels' fault at 20 per cent ; and McDougall's fault at 75 per cent. IV. Analysis
[16] The trial judge properly stated the governing legal principles of negligence. I would not interfere with her application of those principles to the relevant regulatory requirements, industry practice, gravity of harm and burden or cost to prevent that harm. However, in my view, she erred in applying the reasonable foreseeability of harm factor to the circumstances of this case. Before explaining why her analysis of the foreseeability factor was flawed, I briefly comment on the trial judge's treatment of the other factors. [page198] A. The other factors
[17] First, I am skeptical of the trial judge's finding that the method used by Stanzel Plumbing in performing the Bingley's conversion work in 1979 met the requirement in the 1976 Code that the decommissioned heating system be left [at para. 31] "safe and secure from accidental discharge". I would have thought that a tightened cap and a down-turned fill pipe, left accessible where they could be undone easily by anyone, have not been left in a "secure" state. However, I recognize that the trial judge's finding was open to her on the record before her. I note, though, that the record did not include evidence from the governing regulatory body, but only opinions from tradespersons in the business of decommissioning furnaces. The finding that Stanzel Plumbing did not infringe the applicable regulatory standard, as the trial judge noted, is not, by itself, determinative of the standard of care.
[18] Second, the trial judge's finding that the method used by Stanzel Plumbing was an industry practice in 1979 was also open to her on the record before her. I am not convinced, as the appellant argued, that the trial judge relied on evidence she had ruled inadmissible in making this finding. I would make the comment, however, that the record did not enable the trial judge to make a broader assessment of industry practice than what one or two tradespersons did in a fairly small geographic area. While this factor, too, weighs in favour of finding that the respondents met the standard of care, it is also not determinative. Moreover, the poor quality of the evidence regarding industry practice reduces the weight to be given to this factor.
[19] The other two factors, the gravity of harm and the burden or costs of preventing the harm, were not disputed at trial. The potential harm was exceedingly grave, as the damages suffered in this case illustrate. The cost of prevention, as the trial judge noted, was minimal; simply plugging the fuel oil fill pipe would have certainly and permanently prevented the possibility of an accidental discharge. B. Reasonable foreseeability of harm analysis
[20] I turn, then, to the trial judge's analysis of the reasonable foreseeability of harm in the circumstances of this case. The trial judge considered whether a mistaken delivery occasioned by the particular chain of events that unfolded in this case was reasonably foreseeable rather than considering whether, in general, harm from a mistaken delivery of oil to the Bingley residence [page199] was reasonably foreseeable. The trial judge erred in approaching the reasonable foreseeability analysis in this fashion.
[21] In Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co., 1971 959 (MB CA), [1971] M.J. No. 39, 21 D.L.R. (3d) 608 (C.A.), affd [1973] S.C.R. vi, 1973 1313 (SCC), [1973] S.C.J. No. 48, Dickson J.A., in discussing reasonable foreseeability of harm, stated as follows, at p. 614 D.L.R.:
It is enough to fix liability if one could foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable.
[22] Similarly, Dickson J.A. emphasized that "[o]ne need not envisage 'the precise concatenation of circumstances which led up to the accident'", provided that the general harm is reasonably foreseeable: Assiniboine, at p. 613 D.L.R., citing Hughes v. Lord Advocate, [1963] A.C. 837, [1963] 1 All E.R. 705 (H.L.), at p. 853 A.C.
[23] In this case, there is no doubt that the respondents' witnesses, Stanzel and Butler, subjectively foresaw the risk that an oil delivery person could make a mistake by inadvertently delivering fuel to the Bingley address. Indeed, they explained that the very purpose of turning the fill pipe downward was to signal to any delivery person who arrived at the Bingley residence that the oil heating system had been decommissioned.
[24] The trial judge, however, did not consider whether, in general, such a mistaken delivery was reasonably foreseeable. Rather, she referred [at para. 35] to the specific chain of events for which the appellants admitted negligence and concluded that "this kind and degree of mistake and negligence by someone who had nothing to do with the homeowners" was not reasonably foreseeable by the respondents. She also stated [at para. 36] that it was not reasonably foreseeable that a delivery of fuel oil "that was not authorized by anyone and that was made in the face of many indicators to the contrary would be made into [the] tightened and down-turned oil fill pipe". In approaching the analysis in this fashion, the trial judge incorrectly considered whether the harm could reasonably have been foreseen to occur in the particular way that it did. This approach is contrary to the proper reasonable foreseeability analysis articulated in Assiniboine, which requires only that the general harm, not "its manner of incidence", be reasonably foreseeable.
[25] Even focusing on the manner of incidence of the harm in this case, I do not agree with the trial judge's conclusion that it was not reasonably foreseeable that a mistaken delivery would occur "in the face of many indicators to the contrary". In addition [page200] to the downturned fill pipe and the tightened cap, these additional indicators were items of information set out on the delivery ticket. In my mind, however, these indicators do not support the trial judge's conclusion. To the contrary, it may be safely assumed that any oil delivery person who attends at the wrong address has not read the delivery ticket carefully. The method used by Stanzel Plumbing is implicitly premised on an oil delivery person not reading the delivery ticket carefully and, as a result, attending at the wrong address. Accordingly, I fail to see how listing the various additional items of information on the delivery ticket that McDougall failed to read decreased the reasonable foreseeability of a mistaken delivery. What is important is what all the witnesses contemplated -- that an oil delivery person could arrive at the wrong address to deliver oil.
[26] The correct approach leads to the conclusion that the respondents' failure to take the measure of permanently plugging the oil fill pipe created a reasonably foreseeable risk that oil could be mistakenly pumped into the pipe at some later time. Fill pipes are located on the exterior of houses and are accessible to anyone and subject to interference of one kind or another. The Bingleys' fill pipe was on the side of the house next to an extremely narrow driveway and was intended to be left in place indefinitely, irrespective of who owned and occupied the house. It could easily be unintentionally bumped by a vehicle, perhaps a moving truck, or tampered with by anyone unfamiliar with the warning signal intended by the respondents. There was a reasonably foreseeable risk that, over the years, the pipe could be moved to a more upright position by some event or interference, thus negating the intended warning signal, and that a mistaken delivery could occur as a result.
[27] Furthermore, while the respondents took the additional measure of tightening the fill pipe cap, this must be considered in light of the evidence presented at trial that it was not uncommon for a delivery person to have difficulty removing the cap due to the type of threading or temperature- related issues. In addition, the respondents left the whistle in place, the presence of which would generally indicate to an oil deliverer that the oil was being pumped properly into an intact oil tank. Finally, it was reasonably foreseeable that, with the passage of time, an empty oil tank could rust and lose its capacity to hold oil securely.
[28] In short, the possibility of a mistaken delivery was both subjectively foreseen by the respondents and, more importantly, was objectively foreseeable. The method used by Stanzel Plumbing did not adequately safeguard against this reasonably foreseeable harm. Combining reasonable foreseeability with the [page201] enormous potential harm and the trifling cost of permanently plugging the fill pipe, I conclude that the respondents breached the standard of care owed to the Bingleys.
[29] Two comments are worth making about the conclusion that the respondents breached the standard of care owed to the Bingleys. First, though I agree it would be unfair to reach back into the past and measure the respondents' decommissioning work by contemporary safety standards, here the conclusion turned on the forseeability factor. I stress what I noted above, that the view of all the witnesses was that a mistaken delivery was foreseeable at the time. Second, it is worth mentioning that no limitations issue was raised in this case.
[30] Having concluded that the respondents breached the standard of care owed to the Bingleys, I would not disturb the trial judge's apportionment of liability as between the parties. Her apportionment was supported by her findings regarding the carelessness of McDougall and Morrison Fuels. V. Disposition
[31] I would allow the appeal, set aside the decision of the trial judge dismissing the appellants' third-party claim and replace it with judgment in favour of the appellants in accordance with these reasons.
[32] Costs of the trial are remitted to the trial judge. Costs of the appeal are fixed in favour of the appellants on a partial indemnity scale in the amount of $15,000, inclusive of GST and disbursements.
SIMMONS J.A.: (dissenting) -- Introduction
[33] I have had the benefit of reading the reasons of my colleague Juriansz J.A. I respectfully disagree with my colleague's analysis concerning the trial judge's application of the foreseeability of harm factor.
[34] In my opinion, the trial judge's reasons indicate that, in assessing the standard of care and whether there was a breach, she considered reasonable foreseeability taking into account the precautionary measures that were put in place using the Stanzel conversion method. Her findings reflect an assessment that, viewed from a 1979 perspective, using the Stanzel conversion method made it factually unlikely that a mistaken oil-fill would occur. Accordingly, she found no reasonably foreseeable risk of harm and, weighing all of the relevant factors, no breach of the standard of care. [page202]
[35] I see no legal error in the trial judge's approach to the reasonable foreseeability of harm issue. As I see no palpable and overriding error in her findings, I would not interfere with her conclusions on this issue.
[36] I agree with my colleague's analysis of the balance of the trial judge's reasons. Accordingly, I would dismiss the appeal. Discussion
[37] I take no issue with the facts as stated by my colleague and will not repeat them. Simply put, the only contested issue at trial was whether the appellants breached the standard of care by using the "Stanzel method" in converting a residential heating system from oil to gas. The Stanzel method involves leaving most of the components of the oil heating system in place, but protecting against the risk of an errant delivery by turning the exterior oil-fill pipe on the home downward, towards the ground and tightening the cap on the fill pipe so it cannot be opened manually.
[38] In addressing the standard of care issue, the trial judge correctly identified the relevant factors for determining the standard of care when she quoted the following passage from Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201, [1999] S.C.J. No. 7, at para. 28:
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. (Emphasis added)
[39] The trial judge began her analysis by addressing industry practice and regulatory standards. Based on the evidence adduced at trial, she found that prior to the 1982 amendments to the Canadian Gas Association Installation Code for Natural Gas Burning Appliances and Equipment, CGA B149.1-1976 (the "Code"), which introduced a specific requirement that oil fill pipes be removed or plugged when converting to natural gas, one of the industry practices in decommissioning an oil fuel heating system was turning the fill pipe down to the ground. She also found that, as of 1979, the Stanzel method was compliant with the Code. [page203]
[40] The trial judge turned then to the reasonable foreseeability factor. I will repeat her analysis and conclusions for ease of reference [at paras. 33-34]:
In 1979, industry practice that was Code compliant allowed for tightly capped and turned down oil fill pipes as part of a decommissioning method. The homeowners were able to choose this method and did. Stanzel Plumbing heard of no problem associated with this method. In 2001 a fuel oil delivery was made by a man who, having been trained in the safe handling of "dangerous goods" ignored the most basic safety rule from his training that the fuel was to be delivered to the right address. He never checked to see if he had the right address. He had not been trained as to the significance of down-turned oil fill pipes within his delivery area. Nothing about the state of the residence that he should have noticed had he read the delivery ticket or known of the significance of those down-turned oil fill pipes, served to give him any warning that not only was he at the wrong place, but that place had no fuel oil heating system. He did not ask any questions of his office when he noticed the down-turned pipe and its very tight cap, even though that option was easily available to him through the use of his two-way phone. He did not seem to understand that moving an oil fill pipe as much as he did, even if this had been at a home that used furnace oil, could cause leaks in the piping system.
The duty of care and the proper performance of its content was an obligation that Stanzel Plumbing owed to the homeowners in 1979. It was not a duty of care that extended to Morrison Fuels or to any other furnace oil delivery company, to save them from making an egregious mistake in the face of all indications to the contrary and delivering furnace oil to a place with no oil furnace.
[41] Based on this analysis, the trial judge concluded as follows [at paras. 35-36]:
In terms of the objective and reasonable foreseeability of this kind of harm, I cannot find that an ordinary, reasonable and prudent tradesperson in 1979 who is aware of and who complies with the Code and whose choice of measures is concurred in by the homeowners would reasonably foresee this kind and degree of mistake and negligence by someone who had nothing to do with the homeowners.
In other words, I find that in exercising its standard of care owed to the homeowners, Stanzel Plumbing could not have reasonably foreseen that a delivery of fuel oil that was not authorized by anyone and that was made in the face of many indicators to the contrary would be made into that tightened and down-turned oil fill pipe. (Emphasis added)
[42] I agree with my colleague's comments about the trial judge's analysis of the industry practice and regulatory standards factors. Although I may not have made the same findings as the trial judge, I see no basis on which to interfere with her findings.
[43] I reach the same conclusion on the reasonable foreseeability of harm factor. [page204]
[44] The trial judge's conclusion [at para. 36] on the reasonable foreseeability of harm factor is crucial. She said, "Stanzel Plumbing could not have reasonably foreseen that a delivery of fuel oil that was not authorized . . . would be made into that tightened and down-turned oil fill pipe".
[45] In making this statement, in my opinion, the trial judge was focusing on the perceived likelihood, in 1979, of a mistaken oil-fill being made when the Stanzel method was used. In the trial judge's view, given the industry standard and practice in 1979, a reasonable person would not have conceived of it as possible that a trained oil delivery person would make a mistaken oil-fill into a turned down fill-pipe with a tightened cap.
[46] Put another way, the trial judge concluded that, viewed from the perspective of 1979, there was no reasonably foreseeable risk of a mistaken oil-fill when the Stanzel conversion method was used because the Stanzel method protected against the perceived risk of harm created by leaving the oil heating system components in place. In other words, using the Stanzel method met the standard of care.
[47] As I see it, this reflects a legally correct approach to the reasonable foreseeability of harm factor at the standard of care and breach stage of the negligence analysis. In effect, it involves assessing reasonable foreseeability taking account of the measures that were adopted (in this case, the Stanzel method) to avoid a perceived risk of harm (in this case, the risk of an oil delivery man arriving at the wrong address and mistakenly filling a decommissioned heating system with oil).
[48] Taking account of her finding that the Stanzel method was an industry practice and Code compliant, the trial judge concluded that, viewed from a 1979 perspective, there was no foreseeable risk of a mistaken oil fill when the Stanzel method was used. That was the trial judge's call to make. Her conclusion was open to her on the record. I would not interfere with it.
[49] My colleague relies on Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co., 1971 959 (MB CA), [1971] M.J. No. 39, 21 D.L.R. (3d) 608 (C.A.), affd [1973] S.C.R. vi, 1973 1313 (SCC), [1973] S.C.J. No. 48 for the proposition that the extent of damage and its manner of incidence need not be reasonably foreseeable to found liability. My colleague concludes that the trial judge erred by approaching the case on the basis of whether a particular chain of events was reasonably foreseeable rather than considering whether, in general, a mistaken delivery of oil was reasonably foreseeable. In my opinion, Assiniboine does not assist with the analysis in this case. [page205]
[50] Although I acknowledge that the trial judge referred to the unusual chain of events that occurred, as I have said, in my opinion, her core finding was that, viewed from a 1979 perspective, there was no foreseeable risk of a mistaken oil fill when the Stanzel method was used. This finding reflects an appreciation that the risk of harm was a mistaken oil fill and a conclusion, based on the evidence, that using the Stanzel method would negate that general risk of harm. Accordingly, on my reading of the trial judge's reasons, I am not persuaded that Assiniboine applies.
[51] I note, as well, that because of a finding in Assiniboine that the conduct in issue was inherently dangerous, there was no live issue in that case concerning breach of the standard of care. Rather, the issue in Assiniboine was remoteness (or legal causation).
[52] Although it is unnecessary that I decide the point, I have reservations concerning whether the discussion in Assiniboine regarding reasonable foreseeability as it applies at the remoteness stage of the negligence analysis applies equally to the standard of care stage of the negligence analysis. At the remoteness stage of the negligence analysis, it has already been determined (or it is implicit) that there was a breach of the standard of care. It is not clear to me that the principles enunciated in Assiniboine were intended to apply when the issue is assessing whether a defendant has met the standard of care. My concern is that applying the Assiniboine principles could result in holding defendants to a standard of perfection.
[53] In my view, it is important to bear in mind the stage of the negligence analysis one is at when applying negligence jurisprudence.
[54] The Supreme Court of Canada summarized the stages of the negligence analysis in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, at para. 3:
A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant's behaviour breached the standard of care; (3) that the plaintiff sustained damages; and (4) that the damages were caused, in fact and in law, by the defendant's breach.
[55] In Tort Law, 4th ed. (Toronto: Carswell, 2008), at p. 468, Professor Lewis N. Klar points out that analytical confusion can arise from the fact that the foreseeability of harm factor forms part of the analysis in relation to duty, standard of care and proximate cause (legal causation or remoteness). Moreover, he appears to sound a note of caution concerning the use of [page206] proximate cause (legal causation or remoteness) jurisprudence in relation to standard of care issues:
The fact that foreseeability of harm is a component of duty, breach and proximate cause and thus can create analytical confusion is illustrated in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, reversing (2005), 2005 ABCA 383, 53 Alta. L.R. (4th) 219 (C.A.), affirming (2003), 2003 ABQB 616, 333 A.R. 371 (Q.B.). The trial judge found that the risk that an operator of an ice- resurfacing machine could confuse the water and gasoline tanks of the machine was not foreseeable; hence the manufacturer of the machine was not negligent in its design of the machine. This is an issue of breach. The Court of Appeal, on the other hand, saw the issue of foreseeability of the risk of harm as one relating to proximate cause, and applied the jurisprudence relating to that issue. I would agree with the trial judge's approach; the issue was one relating to breach. (Emphasis added)
[56] In conclusion, I am not persuaded that the trial judge committed any reversible legal error in her approach to the standard of care analysis and I see no palpable and overriding error in her findings. In any event, I question my colleague's application of Assiniboine in this case, given that the live issue in Assiniboine was remoteness and in this case it is the standard of care. Disposition
[57] Based on the foregoing reasons, I would dismiss the appeal.
Appeal allowed.