Court of Appeal for Ontario
Date: 20231108 Docket: C70415
Trotter, Sossin and Monahan JJ.A.
Between
Brian Heyworth Plaintiff (Appellant)
and
Doyle Plumbing, Heating & Cooling Defendant (Respondent)
Counsel: Martin Forget and Suhasha Hewagama, for the appellant Martin Smith and Desneiges Mitchell, for the respondent
Heard: October 30, 2023
On appeal from the judgment of Justice Clyde Smith of the Superior Court of Justice, dated February 01, 2022, with reasons reported at 2022 ONSC 677.
Reasons for Decision
[1] The appellant appeals the trial judge’s dismissal of his claim for damages in relation to an oil spill that occurred at the appellant’s farmhouse near Lakefield Ontario in October 2014.
[2] At trial, it was established that the cause of the oil spill was a corroded oil filter on the oil tank at the farmhouse. A licensed oil burner technician (“OBT”) employed by the respondent inspected the oil tank at the farmhouse in November of 2013, approximately a year before the spill. The appellant alleged that the OBT had failed to replace the oil filter during the inspection and therefore was in breach of the applicable standard of care.
[3] The trial judge found that the OBT was under no obligation to replace the oil filter at the time of the inspection, provided that it was in good condition. The trial judge further found that the OBT had performed a workmanlike inspection of the oil filter, observed no cause for concern and concluded that it was in good working condition. Therefore, the trial judge found that the OBT did not breach the applicable standard of care and dismissed the plaintiff’s claim for damages.
[4] The appellant appeals that decision on the following grounds:
(i) the trial judge erred in failing to find that the OBT breached the applicable standard of care by failing to follow the instructions of the manufacturer of the oil filter, which the appellant claims required replacement of the oil filter every year;
(ii) in the alternative, the trial judge erred in failing to find that the OBT breached the standard of care set out in the Ontario Installation Code for Oil-Burning Equipment (the “Code”), enacted pursuant to regulations under the Technical Safety and Standards Act, 2000, S.O. 2000, c. 16 (the “TSSA”); and
(iii) in the further alternative, the trial judge erred in failing to find that the oil filter was in an unacceptable condition at the time of the inspection, and that the OBT should have ‘tagged out’ the filter, indicating that it had to be replaced.
[5] After hearing oral submissions, we advised counsel that the appeal was dismissed with reasons to follow. These are our reasons.
A. Applicable Standard of Review
[6] As will be explained below, the grounds of appeal advanced by the appellant in substance allege that the trial judge erred in his findings of fact, matters that are reversible only in cases of a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.R. 235 at paras. 10, 23-25.
B. The OBT did not breach the standard of care by failing to follow the manufacturer’s instructions regarding replacement of the oil filter
[7] The appellant relies on the fact that the manufacturer’s label on the oil filter states, “replace annually or when clogged.” In cross-examination, the OBT admitted that he did not read that label and, had he done so, he would have replaced the oil filter. The appellant argues that this admission should be taken as establishing that an OBT was required to replace the oil filter annually, and failure to do so was a breach of the applicable standard of care.
[8] The trial judge interpreted the OBT’s evidence quite differently than does the appellant. The trial judge found that the OBT believed that the oil filter only needed to be replaced if it was corroded or leaking. The trial judge also found that when the OBT inspected the filter on the appellant’s oil tank, he found it was in “good shape” and was of the opinion that it did not need to be replaced. Although the OBT did agree in cross-examination that he would have replaced the oil filter had he read the manufacturer’s label, he also testified that he did not believe he was required to replace the oil filter.
[9] In our view, the trial judge’s findings regarding the OBT’s inspection of the oil filter were open to him on the record. It was also open to the trial judge to find, based on the OBT’s evidence, that the manufacturer’s instructions did not establish the applicable standard of care for an OBT’s inspection of oil filters.
[10] The appellant has failed to identify any palpable or overriding error in the trial judge’s factual findings, but merely invites us to revisit the evidence and substitute different findings for those made by the trial judge. That is not our role. Accordingly, we dismiss this ground of appeal.
C. The Code did not require oil filters to be replaced annually
[11] The appellant argues, in the alternative, that the manufacturer’s instructions were incorporated into the Code, with the result that the Code required the oil filter to be changed annually. The OBT breached the minimum required standard of care by failing to replace the oil filter.
[12] The trial judge agreed that the Code establishes the minimum standard of care applicable to an OBT. However, the trial judge found that the Code merely required that oil filters be inspected annually, but not necessarily replaced. This interpretation of the Code followed from the grammatical and ordinary sense of the words used in section 13, which dealt with annual maintenance requirements. The trial judge also found that the Code treats a manufacturer’s instructions that an action “should” be done as a mere recommendation, rather than a requirement. This included the manufacturer’s instruction that the oil filter be “replace[d] annually or when clogged.” The trial judge found support for this interpretation of the Code from the OBT’s understanding that the oil filter need not be replaced if it was in good condition.
[13] The appellant does not take issue with the trial judge’s interpretation of the wording of section 13 of the Code. Instead, he renews his argument that the manufacturer’s instructions required the oil filter be replaced annually, relying on the cross-examination of the OBT in which the OBT admitted he would have replaced the oil filter had he read the manufacturer’s instructions.
[14] In substance, this second ground of appeal is a restatement of the first. As we have already explained, it was open to the trial judge to find that the OBT believed the Code required him to inspect the oil filter, but not necessarily replace it. The manufacturer’s instructions on the oil filter did not displace the OBT’s understanding, since the Code treated manufacturer’s instructions as mere recommendations, rather than requirements.
[15] As we have already explained, we see no reversible error in the trial judge’s finding that the OBT believed he was under an obligation merely to inspect the oil filter rather than replace it. Moreover, the appellant has identified no error in the trial judge’s interpretation of section 13 of the Code, which was consistent with the OBT’s understanding.
[16] We therefore dismiss this ground of appeal.
D. There was no requirement for the OBT to ‘tag out’ the oil filter
[17] The appellant argues that the OBT should have ‘tagged out’ the oil filter, by affixing a notice to the filter stating that it was in an unacceptable condition.
[18] As per s. 26 of O. Reg 213/01, a regulation made pursuant to the TSSA, the requirement to ‘tag out’ an appliance only arises where a contractor is of the opinion that an appliance is in an unacceptable condition.
[19] That was not the case here, since the OBT was of the contrary opinion, namely, that the oil filter was in good working order. Accordingly, the requirement to tag out the oil filter simply did not arise on the facts as found by the trial judge.
[20] This ground of appeal is dismissed.
E. Disposition
[21] The parties have agreed that costs of the appeal should be assessed in the amount of $25,000, on an all-inclusive basis.
[22] The appeal is therefore dismissed with costs payable to the respondent in the amount of $25,000, all inclusive.
“Gary Trotter J.A.”
“L. Sossin J.A.”