ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 11-0486
Date: 2012-01-10
B E T W E E N:
Monica Paul
Bruce Thomas and Michael Fleischmann, for the Plaintiff
Plaintiff
- and -
Oliver Fuels Limited and Bird Fuels Home Comfort Inc.
David Zuber and Joshua Henderson, for Oliver Fuels Limited
Karyn Shapira, for Bird Fuels Home Comfort Inc.
Defendants
HEARD: October 20, 2011
REASONS FOR DECISION
EDWARDS J.
OVERVIEW
[ 1 ] On the morning of January 1, 2011, sometime before noon, the plaintiff was awoken from her sleep by a loud bang on the south side of her house. As events unfolded the bang that the plaintiff heard was, in all likelihood, the sound of her eavestrough and facia falling to the ground. Unbeknownst to her, the falling debris and/or falling ice then likely struck an oil tank installed outside her home. The evidence filed on this motion would also likely lead to the conclusion that the falling debris and/or ice struck the fuel line leading from the tank to the inside of the plaintiff’s house. Ultimately, this then lead to the escape of the tank’s contents and the motions for summary judgment now before me.
[ 2 ] As I framed the issue at the commencement of argument, all of the parties seek summary judgment in the face of competing opinions from their respective experts. Accepting for the moment that the new provisions of Rule 20 have significantly enhanced the powers of a summary judgment motion judge, I was, and still remain, sceptical that those enhanced powers enable me to reconcile those various opinions, such that there can be a determination that this matter does not present a genuine issue requiring a trial.
The Facts
[ 3 ] The plaintiff is a retired, spry 83 year old lady who owned and lived alone at her home located at 21 Queen Street, East, Alliston, Ontario. I will refer to this property as the plaintiff’s home throughout these reasons.
[ 4 ] The defendant, Oliver Fuels Limited carried on business throughout the material time as a fuel oil distributor and fuel oil heating installation, maintenance and repair operator. I will refer to this defendant as Oliver Fuels. The defendant, Bird Fuels Home Comfort Inc., also carried on business with expertise as a fuel oil distributor and fuel oil heating installation maintenance and repair operator. I will refer to this defendant as Bird Fuels. Bird Fuels, as the facts unfold is involved in this litigation as a result of an annual maintenance inspection of the plaintiff’s furnace.
[ 5 ] The plaintiff’s home has since her purchase, always been heated with an oil fired furnace. When she initially purchased the property, the fuel oil tank that supplied the furnace was located in the basement of the plaintiff’s home. In September 2005 Oliver Fuels installed a new fuel oil tank outside of the plaintiff’s home. This fuel oil storage tank, which I will refer to as the tank throughout these reasons, was installed on two patio stones adjacent to the south wall of the plaintiff’s home. The wall against which the tank was installed protruded from the rest of the south wall, so as to accommodate the plaintiff’s chimney. A fuel oil line was connected to the tank which then connected with the furnace located in the plaintiff’s basement.
[ 6 ] The installer of the tank was a Brian Grant (“Grant”), who had extensive experience installing fuel oil tanks including approximately 100 tanks that he installed during the course of his employment with Oliver Fuels.
[ 7 ] When installing the plaintiff’s tank, Grant used five main types of protection for the tank and fuel oil line which included:
a) Placement of the tank in an out of the way area adjacent to the wall of the plaintiff’s home, such that it would not experience much pedestrian traffic.
b) Heavy duty copper piping.
c) Copper piping which was covered in a special engineered orange plastic coating.
d) Piping and plastic coating which were wrapped in a thick black, foam sheath.
e) The tank and fuel line were placed under the eavestrough so as to protect the tank and fuel line from falling snow and ice that might accumulate on the eaves of the roof.
[ 8 ] It was Grant’s experience that the placement of the tank, in an out of the way location, was appropriate so as to minimize the distance of the exposed fuel oil line and protect the tank and fuel line from any human traffic that might take place in the backyard of the plaintiff’s home.
[ 9 ] Grant installed the fuel oil tank under the eavestrough of the plaintiff’s home to provide protection from falling snow and ice.
[ 10 ] As to the location of the tank outside the house versus inside the house, the position of the parties was not surprisingly at odds with each other. The plaintiff in argument was happy to adopt the position of Grant, as gleaned from his cross-examination, where he indicated that there were fewer risks of a fuel leak with an oil tank installed inside a residence. Grant noted in the course of his cross-examination:
Personally, if I had my way, I’d never put a tank outside. My own preference is inside and no insurance company will force me to put mine outside. Because I am a mechanic, I know the problems of putting them outside. If I can, I put them inside.
[ 11 ] Similarly, the plaintiff refers to the National Oil Heat Research Alliance (“NORA”) guidelines, which recommends indoor installations whenever possible.
[ 12 ] Oliver Fuels installed the tank outside the plaintiff’s home because the tank that was planned to be installed did not fit down the staircase to the plaintiff’s basement. While smaller tanks were available that would fit in the plaintiff’s basement none was offered because according to Grant:
It would have been up to Oliver Fuels and because larger tanks decrease fuel oil delivery costs for the distributor, companies try to “up sell” and encourage their customers to install larger tanks when replacements are being considered.
[ 13 ] Oliver Fuels takes the position that Grant was forced to install the standard size 910 litre tank outside the plaintiff’s home simply because the plaintiff’s basement staircase was not large enough to accommodate a normal size tank. The experts retained by all of the parties did not make the issue of indoor versus outdoor a material issue. The real and only issue is whether the installer, Brian Grant, was negligent in terms of the “where” and the “how” he located and installed the tank. The plaintiff argues that it was reasonably foreseeable that falling ice could strike the tank and damage the exposed two foot section of piping.
[ 14 ] The defence argues that while the risk of falling ice was clearly foreseeable, the risk of an eavestrough, facia, and large chunks of ice falling was not foreseeable, and therefore too remote to ground an action in negligence against any of the defendants.
[ 15 ] The claims against Oliver Fuels and Bird Fuels arise out of a different set of factual circumstances. While the claim against Oliver Fuels arises out of the installation of the tank, the claim against Bird Fuels arises out of its alleged failure to properly inspect the tank on September 22, 2010.
[ 16 ] On September 22, 2010, Kevin Goss (“Goss”), a certified oil burner technician, employed by Bird Fuels attended at the plaintiff’s home to conduct the annual cleaning of the plaintiff’s furnace. Goss was properly certified to complete the cleaning of the plaintiff’s furnace.
[ 17 ] Goss conducted a basic annual cleaning of the plaintiff’s furnace and ensured that the plaintiff’s furnace was operating properly. On September 22, 2010, Goss noted that the furnace was running properly and there was no indication of any problem with the fuel oil supplied to the furnace and no indication of any fuel oil leaks in the plaintiff’s oil heating system.
[ 18 ] While Bird Fuels was retained in connection with the annual cleaning and maintenance of the plaintiff’s furnace, it is now also acknowledged by Bird Fuels that Goss did a visual inspection of the tank outside the plaintiff’s home and did not observe any issue of concern regarding the tank.
Position of the Various Experts
The Plaintiff’s Experts
[ 19 ] The plaintiff retained Michael Flynn (“Flynn”), a mechanical engineer, with extensive experience dealing with oil spills. He is not a certified oil burner technician. Flynn attended the property on February 12, 2011, to investigate the cause of the oil spill. Flynn returned to the property with a Glen Moreau, who is a licensed oil burner technician, on February 17, 2011.
[ 20 ] Flynn noted that the patio stones on the south side of the plaintiff’s home were still in place and had settled into the soil. Given the location of the patio stones and the situation of the stones in the soil, Glen concluded that between September 2005 and the date of loss, the fuel oil storage tank had been situated directly under the eavestrough outside the south side of the plaintiff’s home.
[ 21 ] When Flynn attended at the plaintiff’s home, he observed large fallen ice accumulations around the patio stones on the south side of the plaintiff’s home. Pieces of the eavestrough were also in the yard on the south side of the home. With this evidence in mind, Flynn concluded that the loss occurred when part of the eavestrough detached from the plaintiff’s home under the weight of the ice. The ice and/or eavestrough then fell on the fuel oil line situated below causing the fuel line to break away from the fuel oil tank.
[ 22 ] Flynn concluded that where there was no alternative location for a fuel oil storage tank other than below an eavestrough, he was of the view that the appropriate procedure was to use a protective covering over the fuel oil line. Flynn concluded that the fuel oil line would not have been severed if the fuel oil line had been properly protected at the time of its installation.
[ 23 ] Flynn reviewed the statutory requirements that relate to the installation of an oil tank outside a residential home, like that of the plaintiff, and concluded that the installation of the plaintiff’s tank did not comply with the governing statutory standards, which provide in part as follows:
6.5.3 Unless otherwise permitted by the regulatory authority, the tanks described in Clause 6.5.2 shall be
(a) Suitably protected from the weather and from physical damage incident to outside use.
8.3.1.5 Piping and tubing shall be substantially supported and protected against physical damage.
Note: This should include protection against ice damage if necessary. (Installation Code for oil-burning equipment adopted as part of O.Reg. 213/01 )
He further indicated that the defendants should have been aware of their statutory duties, and had they carried out their duties in accordance with these standards, Flynn was of the opinion that the oil spill would have been avoided.
[ 24 ] The plaintiff also retained a Robert Smith (“Smith”), who has 30 years of experience with the Technical Standards and Safety Authority (“TSSA”) Fuels Safety Division, and has been involved in the development of a training manual for the oil burner activation technician for COHA. Smith prepared a report which is dated June 23, 2011, that relates to the cause of the fuel oil leak at the plaintiff’s home. Smith concludes in his report that the fuel oil line was not properly protected from the risk of falling ice. Smith determined that because the tank and fuel line were installed directly under the eavestrough that the risk of falling ice should have been foreseen by the defendants and proper precaution should have been taken, including the covering of the exposed fuel oil line. Smith concluded that a proper safety measure would have been to install the tank at a safer location such as in the basement of the plaintiff’s home or outside, but adjacent to a basement window as in fact was done when the tank was reinstalled on June 6, 2011, after the spill. Smith notes that the cost of taking the above noted precautions would have been negligible.
Position of the Defendants’ Experts
Position of the Expert Retained for Oliver Fuels
[ 25 ] Put as succinctly as possible, this defendants’ expert stated that the protection afforded to the installation of the tank by Mr. Grant was sufficient, i.e. placing the tank under the eavestrough. The defendants note that Flynn only attended the scene on February 12, 2011, and suggest that Flynn was not a qualified oil burning technician and had never been accepted by the courts as being able to speak to the standard of care required of an oil burning technician.
[ 26 ] It is also suggested that Flynn’s testimony has been found to be partisan by the Ontario Superior Court of Justice and should only be accepted with a “cautious approach”, see Brown v. Davis and McCauley Fuels , 2010 ONSC 4674 at paragraph 41. In the absence of an appropriate evidentiary basis, I do not consider on a motion for summary judgment, this as an appropriate basis to discount Mr. Flynn’s evidence – see Desbiens v. Mordini et al 2004 41166 per H. Spiegel J. at paragraph 273 & 274.
[ 27 ] The defendants also point to the fact that the TSSA did not issue any orders arising out of the oil spill against anyone other than the plaintiff. On March 4, 2011, Mark Schubert an inspector with the TSSA attended at the plaintiff’s home to conduct an inspection in relation to the oil spill. In his report Mr. Schubert noted that the spill was likely caused by an eavestrough attached to the roof, falling due to ice build-up, thereby severing the oil tank valve on the tank. Following his investigation, Schubert issued three orders against the plaintiff. No orders were issued against Oliver Fuels or Bird Fuels.
[ 28 ] The defendants argue that both of the experts retained by the plaintiff have admitted that neither industry standards, the applicable fuel oil regulation nor the tank manufacturer require an oil burner technician to protect a fuel oil line from a “building collapsing”. I question whether the falling of eavestroughs and facia amount to the same thing as a “building collapsing”.
[ 29 ] Oliver Fuels retained Jim Roberts to investigate the cause of the fuel oil spill. Roberts, amongst other things, is certified as an oil burner technician. Based on his review of the materials that were provided to him, Roberts was of the view, that industry standards and commonsense did not require the plaintiff’s fuel oil line and tank to be protected from the complete collapse of the eavestrough, soffit and ice build-up, as the eavestrough itself constituted part of the protection to the fuel tank and line below.
[ 30 ] The defendants argue that the ongoing maintenance of the plaintiff’s roof overhang, the aluminum soffits, facia, eavestroughs and downspouts was the responsibility of the plaintiff. The defendants further argue that if the aluminum soffit, facia and eavestrough which were located above the plaintiff’s tank had not failed, then the subject incident would not have occurred.
Expert Retained by Bird Fuels
[ 31 ] Bird Fuels retained David Stainrod, who prepared a report outlining his opinion as to the regulatory requirements and standard of care in the industry at the time of the fuel spill, as it pertained to Bird Fuels and its involvement at the plaintiff’s home. Stainrod has experience in providing technical and regulatory support in propane, natural gas and fuel oil industries.
[ 32 ] It was Stainrod’s opinion that Bird Fuels obligation to the plaintiff pursuant to the statutory regulations when it attended at the plaintiff’s home on September 22, 2010, was to service the plaintiff’s furnace in accordance with the manufacturer’s maintenance instructions and the installation code for oil burning equipment that was in place at the time of the service call. Stainrod further noted that in the absence of any indication that there was a problem with the fuel oil supplied to the furnace, there was no requirement for Bird Fuels to conduct a detailed inspection of the tank. At the time that Stainrod prepared his report, he would not have been aware of an answer to an undertaking given by Bird Fuels to the effect that its technician, in fact, did inspect the oil tank on September 22, 2010, and made no observations of anything untoward.
The Issue
[ 33 ] This is one of those rare cases where all of the parties, i.e. the plaintiff and both defendants, each move for summary judgment on the basis that from their respective perspectives, there is no genuine issue requiring a trial.
[ 34 ] The plaintiff argues that the issue is a discrete and focused question of law; that being whether the defendants adequately protected the exposed fuel oil line or warned the plaintiff. It is submitted on behalf of the plaintiff that the liability of the defendants involves a determination of whether one or both of them breached the statutory requirements which govern the installation and maintenance of a fuel oil heating system.
[ 35 ] On behalf of both defendants the argument is framed in terms of the standard of care that applies to each defendant; whether that standard was breached, and whether the breach caused the damage complained of by the plaintiff. Reduced to its simplest, the defendants ask the question whether there is any evidence of any act or omission on the part of one or both of the defendants that caused the oil spill.
Is This The Type Of Case That Is Amenable To Summary Judgment?
[ 36 ] Much time was spent in argument by counsel for all of the parties as to the application of the new provisions of Rule 20 and how they apply – or should apply to the motion before the court. Since this case was argued, the Court of Appeal has now ruled on this issue: see Combined Air Mechanical Services Inc. et al v. William Flesch et al , 2011 ONCA 764 , and noted that there are three types of cases that are amenable to summary judgment. These can be summarized as follows:
Where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment in accordance with rule 20.04 (2)(b).
A case whose claim or defence is shown to be without merit.
A case which can be disposed of where the trial process is not required in the “interest of justice”.
[ 37 ] Having reviewed these three types of cases, it is clear to me that neither the first nor the second type of case set forth above has any application to the facts before me. Even though all of the parties are moving for summary judgment, there is no agreement that this is a case which is appropriate to be determined by way of a motion for summary judgment. Nor can it be said that the plaintiff’s claim and the various defences raised by the defendants are categorically without merit.
The Full Appreciation Test
[ 38 ] This therefore leaves the third type of case referenced by the Court of Appeal in Combined Air, (supra) . Can it be said that either the plaintiff’s claim or any of the defences raised by either defendant do not require the trial process in the “interest of justice”? The Court of Appeal in Combined Air directed that a judge hearing a motion for summary judgment must ask the following question: “Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”
[ 39 ] The Court of Appeal went on to provide further guidance as follows:
We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.
In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues.
We wish to emphasize the very important distinction between “full appreciation” in the sense we intend here, and achieving familiarity with the total body of evidence in the motion record. Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of the evidence that has been put before them.
The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.
Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.
[ 40 ] While I appreciate counsel did not have the opportunity to deal with the guidance now provided by Combined Air, supra , my major concern with respect to whether this case is one amenable to a motion for summary judgment, was addressed in argument – that being, where there are conflicting expert opinions, how can the court, even with the new forensic machinery provided by Rule 20, resolve those conflicting opinions so as to grant summary judgment one way or the other.
[ 41 ] The plaintiff in this case has presented expert opinion evidence that the plaintiff would have me conclude that the fuel oil line was not adequately protected. I am referred to the decision of Mulligan J. in Appleyard v. Earl (2009), 90 C.L.R. (3d) at 49, where it is submitted; the court had no hesitation in finding a similarly exposed fuel oil line was inadequate. It is worth noting, however, that Appleyard, supra , was a decision after the forensic machinery of a trial had been brought to bear on all of the evidence – which included conflicting expert evidence.
[ 42 ] Counsel for Oliver Fuels argues that the standard of care required of an oil burning technician, does not require that the fuel oil tank be protected against all possible damage. While there is no real dispute that an oil tank installed outside a residential house should be protected from falling ice, it is submitted that the installation under an eavestrough is so situated precisely to protect against falling ice. It follows, so says this defendant, that it could not possibly have been foreseen that the fuel oil line could have been in jeopardy from the entire eavestrough and facia falling, accompanied by chunks of ice.
[ 43 ] The defendant Bird submits that there is no evidence that any act or omission by any of its employees caused the oil spill in question. The fact still remain however, that this defendant did, as evidenced by way of an answer to undertaking, conduct an inspection of the oil tank some three or four months prior to the actual events in question. But for that inspection the arguments of this defendant may have had some merit on its motion for summary judgment. It cannot be said however, at this stage, that the plaintiff has no chance of success as against the defendant Bird.
[ 44 ] While there may very well be cases in the future with conflicting expert opinions that are amenable to a motion for summary judgment, it strikes me that where there are conflicting experts’ opinions, in general, such a case is not, adopting the words of the Court of Appeal in Combined Air, supra, amenable to summary judgment. The facts before me, while simple on first analysis, in reality encompass conflicting experts’ opinions particularly with respect to the standard of care of the installer and the inspector. In short, when confronted with such conflicting experts’ opinions from all sides, a summary judgment motion cannot serve as an adequate substitute for the trial process. For these reasons, the summary judgment motions of the plaintiff and both defendants are dismissed.
Trial Management Rule 20.05
[ 45 ] The parties did not have an opportunity to address the application of this part of Rule 20 other than very brief submissions from Mr. Thomas, that in the event his motion was unsuccessful, that I should direct an early trial in recognition of the advancing age of the plaintiff.
[ 46 ] In the interest of fairness to all parties, I am prepared to hear from counsel as to what directions (if any) may be appropriate so as to possibly streamline these proceedings, while at the same time facilitating the conduct of a trial that will permit the full appreciation of the evidence and issues required to make a final determination in favour of one party or the other. Given the nature of the conflicting expert evidence, counsel may want to consider the advisability (if any) of adopting rule 20.05(2)(k) to allow for some form of “hot tubbing” of the experts. Counsel may also wish to consider whether this is the type of case that could proceed largely on the basis of an agreed statement of fact where the real issue may be the competing expert opinions. At the very least, I may be spoken to about directing an early trial date and early pre-trial date before me.
[ 47 ] With respect to the costs of the motions, I am prepared to hear counsel on this issue at the same time as any submissions are made regarding trial management. It does, however, appear that given neither party succeeded on their respective summary judgment motion, that there should be no order as to costs. There may however be reasons why this disposition is not appropriate and therefore, I am prepared to hear further submissions on this issue. Counsel may make arrangements with the trial co-ordinator to arrange a date for a further attendance to discuss trial management and cost issues.
Justice M. Edwards
Released: January 10, 2012