CITATION: Enbridge Gas Distribution Inc. v. Froese, 2012 ONSC 6437

NEWMARKET COURT FILE NO.: DC-11-000359-00

DATE: 2012-11-14

ONTARIO

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE

BETWEEN:

ENBRIDGE GAS DISTRIBUTION INC.

Plaintiff (Appellant)

– and –

DAVID FROESE a.k.a. DAVID FROSE

Defendant (Respondent)

J. Heath, for the Plaintiff (Appellant)

P. B. Cozzi, for the Defendant (Respondent)

HEARD: October 31, 2012

ON APPEAL FROM THE DECISION OF DEPUTY JUDGE V. STABILE DATED NOVEMBER 18, 2011

REASONS FOR DECISION

DiTOMASO J.

THE APPEAL

[1] The Plaintiff/Appellant Enbridge Gas Distribution Inc. (“Enbridge”) appeals from the decision of Deputy Judge Stabile dated November 18, 2011. The trial judge dismissed Enbridge’s claim for damages arising from the negligence of the Defendant/Respondent David Froese a.k.a. David Frose (“Froese”).

[2] In the action Enbridge claimed that Mr. Froese negligently caused damage to Enbridge’s Gas Main located at 20059 Yonge Street, Holland Landing, Ontario on November 1, 2008 when he used a mechanical digging device to uncover a leaking septic tank. Enbridge further claimed Mr. Froese was responsible for the repair amounts owing pursuant to Enbridge’s invoice.

[3] The trial judge released his Reasons dated November 18, 2011 and found no liability on the part of Mr. Froese. However, if the trial judge was wrong in his findings on the issue of liability, he assessed damages in the amount of $4,831.30. Enbridge does not appeal the finding of damages. Rather, Enbridge appeals the finding that Mr. Froese is not liable for the damages he admittedly caused to the Gas Main. Enbridge asserts that the entire incident could have been avoided if Mr. Froese had simply called for a locate. “Call before you dig”.

OVERVIEW

[4] Enbridge is a corporation incorporated pursuant to the laws of Ontario and distributes natural gas to its customers in Ontario by a series of underground service pipes and Gas Mains.

[5] Mr. Froese is a contractor and a friend of the property owner, Mr. Massey. Mr. Froese has been a property maintenance manager at a small landscaping business for over 20 years.

[6] On November 1, 2008, Mr. Froese received a call from Mr. Massey to request assistance with a leaking septic tank system at Mr. Massey’s property in Holland Landing.

[7] Mr. Froese had to dig to uncover the leaking septic tank. The only information he obtained prior to digging was from a visual inspection of the property and from conversations with Mr. Massey and a neighbour, who advised Mr. Froese that the property line was 50 to 60 feet from the home property. Mr. Froese obtained information about the property line at the property because, according to his testimony, he knew that the Gas Main would not be located on private property.

[8] It turned out Mr. Froese, Mr. Massey and his neighbour were wrong.

[9] Mr. Froese used a machine to dig above the septic tank. He testified that he could dig “spot on” to an exact inch using this machine. Despite this purported accuracy, and the fact that he intended to dig a depth of 14 – 16 inches with the machine, Mr. Froese actually dug to a depth of 18 inches. At trial, Mr. Froese admitted that he “wasn’t concerned with the exact accuracy at this point, just staying above the header [of the septic tank]”.

[10] After digging two to three scoops of soil, a loud rush of air was heard. It was quickly determined that the Gas Main had been ruptured. Shortly thereafter, Mr. Froese contacted Enbridge to report that the Gas Main was leaking.

[11] At trial, Terrence Regan, a long-term employee at Enbridge gave evidence that he attended at the property after the incident. Mr. Regan observed that the Gas Main “was almost completely severed”, the gas was blowing and there was a backhoe in the ground, with a hole in the ground of approximately “four to six [feet]”.

[12] Mr. Regan gave evidence at trial that, as a result of the large gas service outage to 91 customers, Enbridge had to notify the Technical Standards and Safety Authority (“TSSA”) about the damage to the Gas Main.

[13] TSSA provided Mr. Froese with a Fuel Safety Inspection Report containing two orders, stating that Mr. Froese contravened section 9(1) of the Ontario Regulation 2010/01 (the “Regulation”) made pursuant to section 24 of the Technical Standards and Safety Act, 2000 S.O. 2000, C.16 (the “Act”) because he “failed to obtain locates” and section 10 of the Regulation because he “interfered with a pipeline”. The trial judge did not give any weight to the orders which he described as charges because he said there was “no evidence of their outcome”.

[14] The TSSA did not issue any orders to Enbridge as a result of the depth of, or damage to, the Gas Main.

The Requirement to Call for a Locate

[15] The trial judge held that the Regulation and Act set out certain requirements of both Enbridge and Mr. Froese. Enbridge is to ensure that main gas lines are installed at a minimum depth of 24 inches. By those same regulations, Mr. Froese is obliged to call or fax at Ontario wide numbers for a utility locate, a service that provides information as to the location of the utility lines in the area where excavation will be taking place. As well, Mr. Froese is restricted from using mechanical excavation machines within certain limits from the utility locates once notified.

[16] Mr. Regan testified at trial that the “number one thing” to avoid damage to a Gas Main or service is to “get a locate”, which one obtains by calling Ontario One Call. It is “free” and “very simple to do”. A locate is a bird’s eye view map which shows a description of where utilities are located. An excavator is only allowed to dig in the area where a locate has been completed, and must hand dig (and not machine dig) within one meter of the Gas Main. The Guideline for Excavation in the Vicinity of Utility Lines (“the TSSA Guideline”) confirms these requirements. Mr. Regan also testified that a locate can be obtained on an urgent basis and a response will be provided within two hours.

The Defendant’s Admissions that He Failed to Call For a Locate and that a Locate Could have Prevented the Incident

[17] It was Mr. Froese’s own evidence at trial that he knew what a locate was, what it would show, and how to obtain it. Mr. Froese admitted that he did not call for a utility locate on the Property, even though he had done so in the past.

[18] Mr. Froese admitted at trial that he knew what a locate was, what it would show and how to obtain it. He further admitted that he did not call for a utility locate on the property, even though he had called for locates in the past.

[19] Mr. Froese also admitted at trial that he was aware of the TSSA Guideline at the time of the incident and that an excavator is required to hand dig above a Gas Main within the boundary limits. He admitted that he did not follow this procedure or the TSSA Guideline. He further admitted that, had he called for a locate, he would have exposed the Gas Main by hand, as required by the TSSA Guideline.

[20] Despite the fact that Mr. Regan gave evidence that a locate could be obtained on an urgent basis, the trial judge found that Mr. Froese did not call for a utility locate because in Mr. Froese’s “experience, locates would not be carried out quickly” and “the nature of the emergency was such that it would be a health risk to delay getting the septic system “operational”.

[21] Mr. Froese testified that, in hindsight, he would have done “everything [he] possibly could have” to avoid hitting the Gas Main, including obtaining a locate. At trial, Mr. Regan testified that the sole cause of the damage to the Gas Main was the failure to obtain a locate and this could only have been avoided if Mr. Froese knew where the Gas Main was located.

The Depth of the Gas Main and Changes to the Grade

[22] In evidence at trial was the R.B.S. Business Record of Gas Main Installation at the Property dated November 2, 1992 (also known as the Street Service Record) (the “R.B.S. Record”). This document is the original record regarding the installation of the Gas Main. It states that the pipe was buried at a depth of 0.6 meters (approximately 24 inches or two feet) when it was installed on October 28, 1992 in accordance with the Canadian Standards Association Standard, Z662-07, Oil and Gas Pipeline Systems (the “CSA Standard”) which was in force at the time.

[23] At trial, Mr. Froese filed the affidavit of owner Emanuel Massey sworn February 2011, in which Mr. Massey stated that he was “not aware of any changes to the grade at [t]he front of my house since the house construction” and “no changes have been made to this grade since I moved there in 1998”. However, Mr. Massey’s affidavit also stated that the grade of the front yard had been altered by “adding some garden beds” and that there exists a slight slope from the front entrance of his home “graded away to the front ditch”.

[24] At trial, Mr. Regan gave evidence on changes that can occur to grades over time, which can affect the depth of a Gas Main, including the fact that “people do work, they excavate, they do interlock, they building driveways, they build gardens, they take grade away”. Mr. Regan further testified that Enbridge has no control over any of this.

[25] Despite Mr. Regan’s evidence and that of Mr. Massey, the trial judge found that Mr. Massey’s evidence was “unchallenged”.

The Location of the Gas Main

[26] At trial, Mr. Froese testified as to the location of the Gas Main, namely that the septic header pipe was below the Gas Main and “would have been just directly below the – the gas pipe” by two inches.

[27] There was no evidence by any of the witnesses regarding why or how R.B.S. installed the Gas Main at the depth that it did. However, in his Reasons, the trial judge held that “although purely speculative on my part, likely R.B.S. opted to lay the main gas pipe above the already existing septic pipe, rather than below it at additional effort and cost”.

Closing Submissions

[28] In Enbridge’s closing submissions, Enbridge submitted that “but for” Mr. Froese’s failure to obtain a locate, review a locate, hand-dig within one meter of the Gas Main and use reasonable care when digging near the Gas Main, the damage to the Gas Main would not have occurred. For these reasons, Mr. Froese was negligent.

[29] Enbridge further submitted that Enbridge was not contributorily negligent with respect to the damage to the Gas Main because, inter alia, the Gas Main was buried at the required depth when it was installed in 1992. Enbridge also submitted that the locate would have determined the actual location of the Gas Main. If Mr. Froese had obtained a locate prior to conducting any excavation on the property, damage to the Gas Main would have been prevented.

[30] In response, Mr. Froese submitted in his closing submissions that, inter alia, Enbridge did not comply with the CSA Standard since the Gas Main was less than the required 0.6 meters below the grade, the Gas Main was not located where it was recorded in Enbridge’s records, and had Mr. Froese obtained a locate, he would have been entitled to dig mechanically where he did because it was outside the boundary of the accuracy assumptions in the TSSA Guideline. Mr. Froese also submitted that he took reasonable care prior to digging mechanically. Finally, Mr. Froese argued that based on the Massey Affidavit, the grade had not changed and it was safe to assume that the Main was 0.6 meters below grade.

[31] Ultimately, the trial judge found that Mr. Froese was not liable for the damage to the Gas Main and, if he was wrong on the issue of liability, damages owing by Mr. Froese would be in the amount of $4,831.30.

TRIAL JUDGE’S REASONS FOR DECISION

[32] The trial judge’s Reasons for Decision can be found at Tab 2 of the Appeal Book. His analysis can be found at paragraphs 29 – 37 inclusive of his Reasons as follows:

[29] I found both witnesses to be credible and forthright. Neither were present during the initial installation of the gas lines, both main and service, in 1992.

[30] The best evidence presented as to the original installation was the business record of R.B.S. dated October 28, 1992. Upon initial review of same, all appears to be according to minimum guidelines. However, the information contained in the record is not consistent with particulars and measurements taken immediately after the incident. Specifically, the main gas pipe was not at the minimum required depth.

[31] The defendant gave evidence that the septic pipe was at a depth of 18 inches. According to the notes of the TSSA inspector, the main gas line was above the septic pipe and found to be at a depth of 18 inches. This was further verified by the measurements taken by the defendant. This evidence was not challenged.

[32] Accordingly I find that the 2 inch main gas line was found at a depth of 18 inches. This is substantially less than the required minimum.

[33] As part of the production of the inspector’s notes, the defendant produced a document indicating that he had been charged for violating two sections of the Technical Standards and Safety Act: failing to obtain locates and interfering with a pipeline.

[34] There was no evidence as to the outcome of those charges. I understood the plaintiff to suggest that I make a negative inference by virtue of the charges only. Given my findings, with the benefit of evidence that perhaps was not fully appreciated by the inspector on site, I refuse to do so. In any event of the outcome of those charges, I am not persuaded that I should give any weight to them.

[35] I do not accept the plaintiff’s secondary argument that the likely cause of the diminished depth was due to soil erosion for two reasons. First, an Affidavit of Emmanuel Massey, the owner of the subject property was filed in evidence. He stated therein that the grade level of the property had not changed. That evidence was unchallenged and I accept it. Second, the plaintiff and or its employees, servants or agents knew or ought to have known of the likelihood of soil erosion. Thus ought to have taken proper precaution by ensuring that the gas lines were buried at sufficient depth.

[36] Given the confusion in respect to the lot line, requiring survey to resolve, I am not satisfied that a utility locate call would have avoided the incident.

[37] In applying the but for test, I find that if the main gas line had been buried at least the minimum required depth, it would not have been ruptured. I find the business record of R.B.S. to be unreliable. Although purely speculative on my part, likely R.B.S. opted to lay the main gas pipe above the already existing septic pipe rather than below it at additional effort and expense.

[33] At paragraph 38 the trial judge made his finding as to liability as follows:

Based on my findings, as set out above, I find no liability on the defendant. Accordingly, the plaintiff’s claim shall be dismissed.

POSITIONS OF THE PARTIES

Position of the Appellant Enbridge

[34] Enbridge submits that the trial judge committed both errors in law and in fact. His conclusions were unsupported by the evidence. There was no assessment of Enbridge’s claim for negligence against Mr. Froese. Rather, the trial judge focused on the conduct of Enbridge. It is submitted that the trial judge failed to determine what the standard of care was in this case and whether Mr. Froese had breached that standard. His Reasons concentrated on one factor, namely the acts of Enbridge and the installation of the Gas Main and its depth at the time of the incident.

[35] Further, the trial judge erred in law by misapplying the “but for test” based on this single factor in the absence of any analysis. The standard of review for these errors in law is one of correctness.

[36] Further, Enbridge submits that there were a number of findings of fact that were in error. These factual errors are reversible as it is submitted the trial judge made “a palpable and overriding error regarding these findings”. On questions of mixed fact and law, such as where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, this is subject to a more stringent standard of review than for findings of fact. In summary, the trial judge’s finding on liability and dismissal of Enbridge’s action ought to be overturned with this court substituting liability on the part of Mr. Froese. Enbridge seeks damages in the amount of $4,831.30 plus costs payable by Mr. Froese.

Position of the Respondent Froese

[37] It is the position of the Respondent that the legal test which applies in this case is whether the trial judge committed factual findings which were palpable and overriding errors. It is submitted that he made no errors in law. Further, his factual findings and inferences drawn from the evidence ought to be given deference. He committed no palpable and overriding errors. He considered Mr. Froese’s negligence, reasonable foreseeability, the standard of care and the application of the “but for” test. Mr. Froese had reasonable belief that he could dig where he in fact dug. The business records of Enbridge were unreliable and that a locate would not have avoided the incident. Rather, on the strength of Enbridge’s own records, Mr. Froese was authorized to dig where he did, approximately one meter outside the area prohibited for mechanical digging. If the Gas Main buried where Enbridge’s records showed, Mr. Froese could not strike the Gas Main because he was 6.4 feet away. Further, the Gas Main was six inches too high. If Enbridge’s Gas Main had been buried where Enbridge records had showed, Mr. Froese would not and could not have struck the Gas Main because he was digging 4.4 to 6.4 feet away from where those records indicated the Gas Main would have been located.

[38] On behalf of Mr. Froese it is submitted that the trial judge was correct and that the appeal ought to be dismissed with costs.

ISSUES

[39] Enbridge argues that there are six main issues giving rise to errors on the part of the trial judge where he found that:

(a) a utility locate call would not have avoided the incident;

(b) the Gas Main was not buried at the “minimum require depth” immediately after the incident and that Enbridge “ought to have taken proper precaution by ensuring that the [Gas Mains] were buried at sufficient depth”;

(c) the “business record of R.B.S. unreliable”;

(d) it was “likely [that] R.B.S. opted to lay the [Gas Main] above the already existing septic pipe rather than below it at additional effort and expense;”

(e) “the grade level of the [P]roperty had not changed” and that Massey’s evidence of the grade level of the Property went “unchallenged”; and

(f) the Defendant was not negligent, even though:

(i) the Defendant admitted he failed to call for a locate of the Property before excavating with a backhoe and there was evidence that this was the sole cause or contributing cause of the damages sustained by Enbridge; and

(ii) The trial judge misapplied the “but for” test in finding that “if the [Gas Main] had been buried at least at the minimum required depth, it would not have been ruptured.”

ANALYSIS

Standard of Review

[40] The standard of review for decisions in the Small Claims Court is determined by the principles outlined by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus, the standard of review on a question of law is that of correctness.

[41] The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”. However, where the trial judge’s findings are not supported by the evidence, the required standard is correctness and deference is not appropriate.

[42] On questions of mixed fact and law, such that where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, this is a subject to a more stringent standard of review than for findings of fact: see Housen v. Nikolaisen, supra at paras. 8 and 36, Allison v. Street Imports Ltd., [2009] O.J. No. 1979 (Div. Ct.) at paras. 11 and 12.

(a) Failure to Accept that the Locate Would Have Avoided the Incident

[43] At paragraph 36 of his Reasons, the trial judge held that given the confusion in respect of the lot line which required a survey to resolve, he was not satisfied that a utility locate would have avoided the incident. Enbridge submits and I agree that the assumed confusion over the lot line was an irrelevant consideration since the locate would have determined the location of the Gas Main regardless of where the lot line was, and by Mr. Froese’s admission, would have prevented him from hitting the Gas Main. The trial judge’s finding that the failure to accept the locate would have avoided the incident is a palpable and overriding error and an error in fact where he failed to consider the evidence or drew conclusions not properly founded in the evidence.

[44] Pursuant to the Regulation and the TSSA Guideline, while Enbridge has a duty to provide “as accurate information as possible” about the location of the pipeline, the duty of Mr. Froese is that before digging, he “must ascertain from the licence holder the location of any pipeline with which the excavation may interfere.” The TSSA Guideline further provides that “at no time” should an excavator use mechanical excavation within the boundary limits (being one meter) of the locate.[^1]

[45] The Act and its Regulation must be construed broadly and reasonably in line with its purpose to enhance public safety in Ontario by providing for the efficient and flexible administration of technical standards, and in line with section 64 of the Legislation Act which provides that “an Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its object.”[^2]

[46] An excavator that anticipates digging should, in each case, “do that which an ordinary prudent man would do in exercising reasonable diligence in carrying out his particular venture”. For the Court to conclude that a reasonable inquiry has been made, the Court should be satisfied that the inquiry was made, or the information was furnished by a reliable source. In this case, it is not sufficient for Mr. Froese, who is familiar with the work he was performing and hazards associated with that work, especially hazards relating to digging near underground pipelines, to ask the owner of the property whether such lines are to be found on that property. This is so especially where in other situations, Mr. Froese made inquiries about the presence or absence of any lines by calling the offices of the gas company.[^3]

[47] The Act and Regulation make it clear that Mr. Froese had the obligation to call Enbridge for a locate before digging.

[48] Section 9(1) of the Regulation provides:

9(1) No person shall dig, bore, trench, grade, excavate or break ground with mechanical equipment or explosives without first ascertaining from the licence holder the location of any pipeline that may be interfered with.

(2) The licence holder shall provide as accurate information as possible on the location of any pipeline within a reasonable time in all the circumstances.

10. No person shall interfere with or damage any pipeline without authority to do so.

[49] Had Mr. Froese called for a locate as required by the Regulation and TSSA Guideline and as he had done in the past, the Ontario One call would have determined the actual location of the Gas Main, marked it for Mr. Froese and provided a Locate Report. As admitted by Mr. Froese in his testimony at trial, this would have caused him to act differently. Furthermore, Mr. Froese would not have been able to use mechanical equipment to dig where he did. No reasonable inquiry was made and it was not sufficient for him, an individual familiar with the Regulation and Guidelines in the work he was doing, to ask the owner of the property and neighbour, especially where he obtained locates before.

[50] The assumed confusion over the location of the lot line was an irrelevant consideration. The critical question was not where the lot line was located but where Enbridge’s Gas Main was located. Consequently, the trial judge made a palpable and overriding error when he held that a utility locate call would not have avoided the incident.

(b) Failure to Accept that the Gas Main was installed at the Required Depth

[51] The trial judge held that the Gas Main was not at the “minimum required depth” immediately after the incident and he held that Enbridge “ought to have taken proper precaution by ensuring that the [Gas Mains] were buried at a sufficient depth”: see Reasons at paras. 30 & 35.

[52] The required depth for the installation of distribution lines on private property, as set out in Table 12.2 of the CSA Standard is 0.6 meters (or 24 inches).[^4] The CSA Standard requires that the Gas Main be originally installed and buried at 0.6 meters. There is no requirement that the Gas Main must remain installed at the minimum depth. If this was a requirement then the Legislature would have included it either in the Act, Regulation, TSSA Guideline or CSA Standard.[^5]

[53] There is no requirement that Enbridge must continually measure the depths of all of its buried pipelines. Such a finding would lead to the absurd result that utility companies would be required to constantly recheck their lines in the ground. It is a well-established principle of statutory interpretation that the Legislature does not intend to produce absurd consequences. If the Legislature intended this result, the Act, the Regulation, the TSSA Guideline or CSA Standard would have stated that utility companies must ensure that the pipes “remain” buried at a minimum depth.

[54] Unlike the case of Sun-Canadian Pipeline, where the Court found that the company had actual knowledge that the pipeline had insufficient cover on the property, there is no evidence that Enbridge had knowledge that its Gas Main was at less than the required depth at the property until after the incident occurred.[^6]

[55] The evidence presented at trial and the RBS Record clearly shows that the Gas Main was installed on October 28, 1992 at the required depth of 0.6 meters which is in compliance with the CSA Standard. The trial judge erred in law in finding that the Gas Main was not at the “minimum required depth” immediately after the incident, and in holding that Enbridge “ought to have taken proper precaution, that the Gas Main was buried at a sufficient depth”.

(c) Unsupported Finding that the R.B.S. Record is Unreliable

[56] The trial judge at para. 30 of his Reasons, found that the R.B.S. Record was “the best evidence presented as to the original installation” and contained some “helpful information”. However at para. 37 of his Reasons applying the “but for test”, he found the business record of R.B.S. to be unreliable. It was accepted at trial that the depth of the Gas Main at the time of the installation was 0.6 meters or 24 inches as required by the CSA Standard. The evidence at trial contained in the R.B.S. Record was not refuted. The Standard of Review in respect of the trial judge’s finding is one of correctness as evidence was lacking to support the finding that the R.B.S. Record was unreliable. In this regard, the trial judge made an error in law.

(d) Improper Speculation of R.B.S.’s Considerations in Installation the Gas Main

[57] At paras. 31 and 37 of his Reasons, the trial judge found that the gas line was above the septic pipe and found to be at a depth of 18 inches. He further stated that “although purely speculative on my part”, it was “likely [that] R.B.S. opted to lay the [gas main] above the already existing septic pipe rather than below it at additional effort and expense”.

[58] R.B.S. was not called as a witness at trial and it was not for the trial judge to speculate what R.B.S. opted to do or not do when it installed the Gas Main in 1992. There was no evidence presented at trial with respect to the “effort and expense” that went into installing the gas main or evidence on when the septic pipe was installed on the property. Further, the R.B.S. Record does not support such speculation.

[59] Consequently, the trial judge made a palpable and overriding error by failing to consider the evidence or draw conclusions not properly founded in the evidence when he speculated that it was likely that R.B.S. opted to lay the Gas Main above the already existing septic pipe rather than below it for essentially cost considerations.

(e) Misinterpretation and Improper Weight Given to the Affidavit Evidence of Massey and the Grade Level of the Property

[60] The trial judge considered the affidavit of Mr. Massey and referred to it at para. 35 of his Reasons. The trial judge did not accept Enbridge’s argument that the likely cause of the diminished depth was due to soil erosion for two reasons. Firstly, the affidavit of Mr. Massey stated that the grade level of his property had not changed, that this evidence was unchallenged and accepted by the trial judge. Secondly, Enbridge knew or ought to have known of the likelihood of soil erosion thus it ought to have taken proper precaution by ensuring that the gas lines were buried at sufficient depth.

[61] Enbridge submits that the trial judge made a palpable and overriding error: (i) by failing to consider the evidence or draw conclusions not properly founded in the evidence when he held that Massey stated that “the grade level of the property had not changed” and (ii) he erred in fact when he held that the evidence of Massey regarding the grade level of the property went unchallenged.

[62] The affidavit of Massey did not state that the grade level had not changed. Rather, it provided that he was not “aware of any changes to the grade” since he lived there in 1998. The affidavit of Massey also stated that the grade of the front yard had been altered by “adding some garden beds” and that the area from the front entrance, where the septic tank was located, had been “graded away to the front ditch”. I agree with Enbridge’s submission that the trial judge erred in holding that Massey’s affidavit stated that the grade level of the property had not changed when the affidavit clearly stated otherwise. Further, I also agree that the evidence of Massey was not “unchallenged”. In fact, the evidence at trial from Mr. Regan was that grades on property change over time due to a number of factors.

[63] The affidavit of Massey only speaks to the period of time from when he lived on the property from 1998 onwards. There was no evidence at trial on whether there was erosion on the property between 1992 and 1998. The trial judge failed to consider whether there was erosion or other environmental factors that would or could have changed the grade level before 1998.

(f) The Negligence of the Defendant

(i) The Admitted Negligence of the Defendant

[64] I find that the trial judge made a palpable and overriding error in fact and law in failing to consider Mr. Froese’s admitted negligence and failure to call for a locate of underground services before excavating with a backhoe as the sole cause or contributing cause of the damages sustained by Enbridge. Mr. Froese readily admitted at trial that he did not call for a locate and that, in hindsight, he would have conducted himself differently. He also admitted at trial that he did not hand-dig as required by the TSSA Guideline.

[65] A successful action in negligence requires the Plaintiff to 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 damage was caused, in fact and in law, by the defendant’s breach.[^7]

[66] The Court in Sun-Canadian Pipeline Co. v. Lockwood held that a violation of section 18(1), which is similar to section 9(1), is evidence of negligence on the part of the contractor if the breach caused the damage to the pipeline. In addition, the Court in R. v. Leblanc, in interpreting sections 18(1) and 19 of the former Energy Act found that both sections impose absolute or strict liability on a defendant.[^8]

[67] While Enbridge is not claiming damages based on absolute or strict liability on Mr. Froese, Enbridge is asserting a claim for negligence based on a breach of Mr. Froese’s duty of care to Enbridge.

[68] There can be no doubt that Mr. Froese owed Enbridge a duty of care to avoid interference with Enbridge’s property, including the Gas Main. It was reasonably foreseeable that the owners of utility lines located on the property, including Enbridge, could suffer damage as a result of Mr. Froese’s actions in failing to take reasonable care. In addition, there are no policy considerations that would limit such a finding that Mr. Froese owed Enbridge a duty of care. The evidence at trial is clear that Mr. Froese breached the standard of care owed to Enbridge by failing to make a reasonable inquiry in order to ascertain the location of any pipeline and in order to ascertain whether digging might interfere with that line, as readily admitted by Mr. Froese at trial. It is not sufficient for Mr. Froese, who was familiar with the work he was performing and the hazards associated with that work, especially hazards related to digging near underground pipelines, to ask the owner of the property or a neighbour where such lines are to be found on the property. This is especially so where prior to the incident, Mr. Froese had made inquiries on other projects about the presence or absence of any lines by obtaining a locate.[^9]

[69] It is clear that the Defendant breached his duty of care, as evidenced by his admissions at trial that he: (i) dug at the property without having obtained a locate; (ii) failed to properly ascertain the location of all of the utility lines on the property, including Enbridge’s Gas Main, prior to using the mechanical equipment to excavate; (iii) dug with mechanical equipment when hand digging was more appropriate; (iv) failed to follow the TSSA Guidelines, despite knowing of their existence; (v) dug with mechanical equipment in a careless fashion and with reckless disregard for the utility lines located on the property, including Enbridge’s mains and services; and (vi) dug at the property without having obtained a locate and using mechanical equipment instead of hand digging contrary to the Act, the Regulation and the TSSA Guideline.

[70] As a result of Mr. Froese’s actions, Enbridge sustained damages. If he was wrong in liability, the trial judge assessed damages in the amount of $4,831.30. The trial judge in coming to his conclusion that there was no liability on Mr. Froese based on his findings set out in his Reasons failed to undertake an analysis of the standard of care in this context and whether Mr. Froese owed Enbridge a duty of care. Going one step further, if Mr. Froese did owe Enbridge that duty of care was he in breach? Rather, the Reasons of the trial judge are focused on the location and insufficient depth of the Gas Main taking him to the conclusion that a utility locate call would not have avoided the incident. In the absence of a proper analysis regarding the standard of care and Mr. Froese’s conduct, I find the trial judge made a palpable and overriding error in fact and error in law. He was incorrect in failing to find that Mr. Froese had breached his duty of care to Enbridge as a result of which Enbridge sustained damages.

(ii) Misapplication of the “But For” Test

[71] At para. 37 of his Reasons, the trial judge applied the “but for” test. He found that if the main gas line had been buried at least at the minimum required depth, it would not have been ruptured. He went on to find the Business Record of R.B.S. to be unreliable and also went on to speculate why R.B.S. opted to lay the main gas pipe above the already existing septic pipe. I have already dealt with these last two issues. It is the application of the “but for” test by the trial judge that is also problematic and causes this court further concern.

[72] For the following reasons, this court concludes that the trial judge erred in fact and in law when he applied the “but for” test.

[73] The primary test for causation in negligence actions is the “but for” test. This applies to multi-cause injuries. The Plaintiff is required to prove on a balance of probabilities that “but for” the negligence of the Defendant, the Plaintiff’s injury would not have occurred. Having applied the “but for” test, contributory negligence may be apportioned as permitted by statute.[^10]

[74] In the case at bar, the trial judge erred in law in misapplying the “but for” test to the depth of the Gas Main buried by Enbridge, instead of applying the test to Mr. Froese’s actions or inactions. He failed to give consideration to “but for” the negligence of Mr. Froese in failing to call or review a locate, failing to hand-dig within one meter horizontal plane from the middle of the Gas Main and use reasonable care when digging near the Gas Main, the damage would not have occurred.

[75] At trial, Mr. Froese testified that he was not negligent because the Gas Main was buried at a depth of 18 inches, which was less than the required minimum. This does not absolve him of the obligation to obtain a locate. “Call before you dig”. The evidence was clear from the Massey affidavit that there had been gardening and grading changes to the property which accounted for the variance of depth between the R.B.S. Record of 0.6 meters and the depth of 0.45 meter as found after the incident. There was no continuing obligation at law on the part of Enbridge to ensure that at any time after installation the Gas Main remained installed at 0.6 meters. The only exception would be if it had actual knowledge that the Gas Main was at a shallow depth. In this case Enbridge did not have any such knowledge.

[76] As for the location of the Gas Main, the R.B.S. Record places the Gas Main at five meters from the front of the house. When Enbridge’s forces came to repair the Gas Main, the Mains and Service Damage Report placed the damaged location at 4.8 meters west from the front of the house. In addition, the notes of the TSSA Inspector locates the damaged Gas Main at 15 feet 10 inches or 4.8 – 4.9 meters from the front of the house. From three important sources, the location of the Gas Main was consistently in the same place and not some other distance from the house on which Mr. Froese relies to support his reasonable belief that he was digging in a safe place. He was not digging in a safe place. Rather, he was digging right on top of the Gas Main. The fact that it was at a depth of 18 inches as opposed to 24 inches at the time of the incident is only one factor to be considered by the trial judge. What is most relevant is that Mr. Froese ought to have obtained a locate before digging, that locate was readily available to him and he knew that he had to obtain one. He was in the line of work where he had obtained locates in the past. However this time, he chose to dig first without obtaining a locate and in failing to abide by the Act and Regulation and Guidelines, he damaged Enbridge’s Gas Main. His argument about reasonable foreseeability based on his consultation with Mr. Massey and a neighbour is without merit. In the end, he guessed where the Gas Main was and he was wrong. If he had called for a locate, the location of the gas line and the Gas Main would have been established before digging. The incident could have been avoided if he had done so. He owed a duty to Enbridge but breached his statutory duty. In the end, it was his negligence that was the sole cause of Enbridge’s damages. Enbridge is not contributorily negligent in any way regarding this event.

CONCLUSION

[77] For the reasons given, this court finds that the trial judge erred in fact and in law. He committed palpable and overriding errors and accordingly, this Court sets aside his decision. Judgment is granted in favour of Enbridge in the amount of $4,831.30 together with costs fixed at $950 plus HST.

[78] As for the costs of the appeal, if the parties cannot agree upon costs, those costs shall be determined by way of written submissions. Counsel are to exchange and file within 14 days of this decision a concise summary of position not exceeding two pages together with Bill of Costs, Costs Outline and copies of any cases. Those documents are to be filed with the trial co-ordinator at Barrie and brought to my attention.

DiTOMASO J.

Released: November 14, 2012

[^1]: Enbridge Gas Distribution Inc. v. Ontario (Ministry of Labour), 2011 ONCA 13, 328 D.L.R. (4th) 343, 2011 CarswellOnt 13 [obtained on WL on Mar. 21, 2012] (CA) [Enbridge – CA] at paras. 64-66; Oil and Gas Pipeline Systems, Ontario Regulation 210/01, s.3, Regulation under the Technical Standards and Safety Act, 2000, SO 2000, c 16 [Oil and Gas Pipeline Regulation]; TSSA Guideline, p. 4-5 and 7-8, Tab 8 of the Plaintiff’s Document Brief, Exhibit “A” at Trial, Exhibit Book, Tab 2(8), pgs. 11-28, and Appeal Book, Tab 6(8), p. 88-105.

[^2]: Enbridge Gas Distribution Inc. v. Ontario (Ministry of Labour), 2010 ONSC 2013, 251 OAC 27, 2010 CarswellOnt 2305 [obtained on WL on Mar. 21, 2012] (SCJ) [Enbridge – SCJ] at paras. 23, 25, 69, 70, 75, and 77; aff’d Enbridge – CA, supra; Legislation Act, R.S.O. 2006, c.21, s.64

[^3]: R. v. Leblanc (1974), 1974 1648 (ON CJ), 21 CCC (2d) 118, 1974 CarswellOnt 1016 [obtained on WL on Mar. 21, 2012] Prov. Ct.) [R. v. Leblanc] at paras. 10-13

[^4]: Canadian Standards Association, Z662-07 Oil and Gas Pipeline Systems, (Mississauga: Canadian Standards Association, 2007) at 256 (the “CSA Standard”)

[^5]: Enbridge-SCJ, supra, at paras. 23, 25, 69, 70, 75, and 77; aff’d Enbridge – CA, supra; Legislation Act, R.S.O. 2006, c.21, s.64; Re Rizzo & Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 SCR 27, 1998 CarswellOnt 1 [obtained on WL on Mar. 21, 2012] SCC at paras. 21 and 27

[^6]: Sun-Canadian Pipeline Co. v. Lockwood (1993), 1993 CarswellOnt 2509 [obtained on WL on Mar. 21, 2012] (Gen.Div.) [Sun-Canadian Pipeline] at paras. 49 and 50

[^7]: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114, [2008] SCJ No. 27 [obtained on QL on Mar. 21, 2012] (SCC) at para. 3

[^8]: Sun-Canadian Pipeline, supra, at para. 22; R. v. Leblanc, supra at paras. 6, 7 and 8

[^9]: R. v. Leblanc, supra at paras. 10-13

[^10]: Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 SCR 333, 2007 CarswellAlta 130 [obtained on WL on Mar. 21, 2012] (SCC) at paras. 21 and 22