SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 06-26503B
DATE: 2012-03-08

RE: Kenneth Donald Gordon, Linda Joyce Gordon and Michael Gordon, plaintiffs

AND: Procyk Farms (1994) Limited, William Procyk, Annie Procyk, Michael Procyk, Daniel Procyk and Dow Agrosciences Canada Inc.

AND: Sylvite Agri-Services Limited, Future Transfer Company Inc. and R M Nelles & Son, third parties

AND: Dow Agrosciences Canada Inc., fourth party

BEFORE: Mr Justice Ramsay

COUNSEL:
no one for the plaintiffs

Mr ZS Pete Volaric for the defendants Procyk

Mr D. Wolski for the defendant Dow

Mr Michael G. Emery for the third party Sylvite

Mr James H. Bennett for the third party Nelles

HEARD: 2012-03-08 at Hamilton

ENDORSEMENT

[ 1 ] Sylvite and Nelles move for summary judgment on the Procyk defendants’ third party claim against them. Future Transfer has already been let out of the third party claim with the Procyks’ consent, and has discontinued its fourth party claim against Dow. Dow takes no position on the present motions. The Procyks resist summary judgment.

[ 2 ] The Procyks are farmers whose neighbours are suing them and Dow for polluting their well with pesticide. The pesticide leaked onto the Procyks’ land, and from there into the neighbour’s well, as the result of a leak from a storage tank through a faulty valve. The Procyks and Dow are cross-claiming against each other.

[ 3 ] In April 2004 the Procyks needed a chemical called Telone C17 in order to prepare their land for growing ginseng. They ordered it from Nelles, a provider of agricultural products. The Telone had to be applied to the land in June. But there was a discount for taking delivery before the end of April.

[ 4 ] Nelles was not an approved distributor of Telone, so it ordered from Sylvite. Nelles got a commission on the sale. Sylvite bought the Telone from Dow. Dow had a written distribution agreement with Sylvite. Sylvite delivered a storage tank to the Procyks. Dow delivered the Telone into the storage tank through its agent, Future Transfer, on April 26, 2004. In early June 2004 the Procyks discovered that a significant quantity of Telone had leaked out of the tank.

[ 5 ] Telone stinks. Given the lack of any apparent odour or other indication of trouble on April 26, 2004, and given the apparent odour in June 2004, it appears that the leak or most of it occurred closer to June, when it was discovered. It did not occur during delivery and it had nothing to do with the application process, which had not yet been performed.

[ 6 ] The evidence strongly points to a faulty valve. One of Dow’s employees inspected the valve, showed it to Nelles’ salesman, and admitted to him that the valve had corroded.

[ 7 ] There is evidence that the tank was owned by Dow. Nevertheless, it was Sylvite who delivered it.

[ 8 ] Sylvite takes the position that it cannot be liable. The contracts between Nelles and it are oral and say nothing about Sylvite or Nelles having liability to indemnify a purchaser for damage caused by leaking product. Sylvite did not own the valve and is therefore not responsible for its maintenance. It does not require a trial to find that Sylvite has no liability. Nelles agrees and adds that it is even one step further removed from Dow. Nelles’ motion, it argues, should be granted for the same reason as Sylvite’s and also because the Procyks have no chance of success as far as Nelles is concerned.

[ 9 ] The Procyks argue that they are the only ones, apart from the plaintiffs, who can say that they had no responsibility for the leak, apart from owning the land. They did not deliver, store, or apply the product. They contracted with Dow’s agent’s agent, who in turn contracted with Dow and its agent, to do that for them. Dow in its defence pleads that it is not responsible for the delivery and storage of Telone C17, or the maintenance of the bulk storage tanks for the product. It is only responsible for ensuring that purchasers are licensed or certified and for maintaining records of sales. Sylvite and Nelles plead that they are not responsible for maintenance of the storage tank. The Procyks submit that they should not have to let two third parties go and run the risk that the trier of fact will assign liability to the absent third parties rather than the co-defendant.

[ 10 ] To this the third parties point out that on a motion for summary judgment a party is not entitled to rely on pleadings. It must put forward evidence. In the circumstances I would not give effect to this argument. I do not think that the requirement to lead trump or risk losing necessarily requires a defendant to seek and obtain evidence from adverse parties, such as Dow, at least not at this point. Dow has not yet been examined for discovery. The motion is premature.

[ 11 ] If in due course Dow provides evidence that it is not responsible for the tank, liability will depend on the contractual relationship among the various parties, little of which is in writing. The terms of the contracts, and therefore questions of credibility of witnesses, may well decide the case as among the Procyks, Dow and its agents. Unless something changes, this strikes me as the sort of case that requires a trial in order for the trier of fact to gain a full appreciation of the evidence.

[ 12 ] The motions are dismissed. The parties may make written submissions to costs in writing, the Procyk defendants within 10 days and the other parties within 20 days.

J.A. Ramsay J.

Date: 2012-03-08