COURT FILE NO.: CV-16-141
DATE: 20220201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Heyworth
Plaintiff
– and –
Doyle Plumbing Heating and Cooling
Defendant
Martin Forget, Counsel for the Plaintiff
Stephen Baldwin, Counsel for the Defendant
HEARD: September 13 – 24, 2021
C.M. SMITH J.
REASONS FOR JUDGMENT
BACKGROUND
[1] This case is a subrogated claim for damages brought by the insurance company for the plaintiff as a result of substantial damage caused by a heating oil leak in the basement of the plaintiff’s property near Lakefield, Ontario.
[2] The defendant was responsible for the maintenance and upkeep of the oil burning appliance located in the plaintiff’s property.
[3] Due to the nature and extent of the heating oil leak the plaintiff was obliged to demolish his house, remediate the soil below the foundation of the house, and then construct a new home.
[4] The plaintiff’s insurer seeks damages in the amount of $605,492.07.
FACTS
[5] The property in question was an old farmhouse dating from the 19th century. It was constructed on a loose stone/rubble foundation. The basement was little more than a crawl space where the furnace and oil tank were located. The area had a dirt floor.
[6] The ground floor and upper floor of the house were occupied in part by the plaintiff and in part by a tenant.
[7] The plaintiff was in the habit of purchasing and hauling his own heating fuel. He would also fill the tank himself. He last filled the tank on October 6, 2014.
[8] The defendant's employee, Mr. Michael Foote, is a licensed Oil Burner Technician (OBT). He conducted an annual maintenance on the oil burning equipment, specifically the oil tank and the furnace, at the plaintiff’s home on November 22, 2013. In the course of his inspection of the system Mr. Foote elected not to replace a spin-on micron filter, installed immediately adjacent to the furnace itself, as he found it to be in good condition.
[9] The filter in question is manufactured by a company called General Filter. It is not designed to be inspected and repaired, rather, it is designed to be replaced annually. The casing of the filter is labeled “Replace filter annually or when clogged”. The label also includes a space for the maintenance technician to write in the date the filter was replaced. That space on the filter in question was not filled in by whoever originally installed this particular filter.
[10] On October 10, 2014 the plaintiff realized that there was a pronounced smell of heating oil in his home. He contacted the defendant company who in turn sent Mr. Foote back to assist.
[11] Mr. Foote inspected the heating oil tank, the fuel lines, and the furnace. He discovered that when he actually ran the furnace, heating oil began spraying out of the side of the adjacent filter. The evidence suggests that had been going on for an indefinite period of time, the plaintiff having been unaware of the problem.
[12] Mr. Foote contacted the Technical Standards and Safety Act (TSSA) authorities to advise of the spill. The plaintiff contacted his insurer. The insurer immediately assigned an independent adjuster, Mr. Ed Tillaart, to the file. He in turn immediately retained Mr. Mike Flynn, an engineer with expertise in these matters, to provide an origin and cause report. Mr. Trevor McEwen, an engineer with expertise in the delineation and remediation of environmental losses, was also hired to assess and complete the required remediation of the property.
[13] In the weeks immediately following the discovery of the leak various efforts were made to remove the contaminated soil from the basement. Eventually it was determined that further removal of the soil would result in the weakening of the foundation, which in turn would threaten the structural integrity of the home. Accordingly, the decision was made to tear down the home in order that the ground could be fully and properly remediated.
[14] A new home was eventually constructed on the site by the plaintiff. The plaintiff’s policy limits precluded replacement of the demolished home in its entirety. The plaintiff was therefore obliged to settle for a smaller replacement home. The plaintiff also performed a considerable amount of the work associated with the reconstruction project himself. In particular, he used his own equipment, and fill from another part of his property, to backfill the hole left by the removal of the contaminated soil.
[15] For his own reasons, the plaintiff also chose to forgo the option of pursuing the defendant for a tort claim covering the difference between his policy limits and the actual cost of the replacement home.
[16] Each of the individuals named above, testified in person at the trial. The plaintiff was initially reluctant to participate however, midway through the trial, he let it be known that he would testify. He appeared by ZOOM link from his new home somewhere in western Canada.
ISSUES
[17] In my view the issues in this matter are as follows:
Is the opinion evidence of Mr. Michael Flynn admissible either as the evidence of a participant expert, or, as the evidence of an expert pursuant to rule 53?
What was the origin and cause of the heating oil leak?
What is the standard of care the defendant is required to meet?
Did the defendant breach the standard of care?
If the defendant did breach the standard of care, what is the quantum of damages owed to the plaintiff?
ISSUE #1: Is the opinion evidence of Mr. Michael Flynn admissible as the evidence of a participant expert, or, as the evidence of an expert pursuant to rule 53?
Background
[18] Mr. Flynn was retained by Mr. Tillaart to determine and report on the origin and cause of the heating oil leak. He was on site the day after the leak was discovered.
[19] Mr. Flynn prepared an oil escape investigation report dated February 4, 2015. That report detailed his investigation, the opinion he formed as a result of his investigation, and the reasons behind that opinion. In Mr. Flynn’s opinion, the leak was caused by deterioration in the outer casing of the filter.
[20] This action was commenced on June 16, 2016. On August 15, 2016 the defendant filed a statement of defence.
[21] Examinations for discovery were held on August 21, 2017. Apparently, counsel for the defendant abruptly terminated his questioning of the plaintiff at the discovery after only 32 minutes. This was due to the rather hostile and defensive posture adopted by the plaintiff in the course of those 32 minutes.
[22] The defendant subsequently brought a motion seeking an order compelling the plaintiff to reattend for completion of the examination for discovery. That motion was heard by Speyer J. who declined to make such an order and found that counsel for the defendant should have persisted in asking all the questions he wanted the plaintiff to answer on the first occasion.
[23] That being the case, counsel for the defendant was not able to question the plaintiff about potential expert’s reports.
[24] The matter was set down for trial and a judicial pre-trial conference was scheduled. Pre-trial memorandums were prepared and served by both parties. The plaintiff served a pre-trial memorandum on June 25, 2020, some 14 months before trial. That memorandum included both a copy of Mr. Flynn's report, as well as an in-depth discussion about its content.
[25] The pre-trial conference was held April 6, 2021, some 5 months before trial. During the pre-trial counsel for the defendant did not raise any issues regarding he plaintiff’s compliance with Rule 53.03.
[26] Counsel for the Defendant did not raise the issue of the plaintiff’s non-compliance with Rule 53:03 until four days before the commencement of trial when he did so during the course of a last-minute trial management teleconference between myself and counsel. It was at that point that counsel for the defendant first advised that Mr. Flynn's report was not fully in compliance in with the terms of Rule 53.03 in that it had not been served with a duly executed acknowledgement of the expert’s duty, nor was it accompanied by Mr.. Flynn’s curriculum vitae. The missing documents were served on the defendant by the plaintiff later that same day.
Positions of the parties
The plaintiff
[27] The plaintiff takes the position that any shortcomings in the service of Mr. Flynn’s report can be easily remedied through the provisions of Rule 53.08 (1). That rule requires the trial judge to grant leave for the admission of the evidence in question on such terms as are just, unless to do so would cause prejudice to the opposite party or cause undue delay in the conduct of the trial.
[28] The plaintiff submits that Mr. Flint could also qualify as an expert witness because he is in fact a participant expert. The plaintiff points to Mr. Flynn's actual attendance on site at the time the oil spill was first discovered in support of this proposition.
The defendant
[29] The defendant objects to Mr. Flynn testifying as a Rule 53 expert because the report was not properly served 90 days before the pre-trial conference.
[30] The defendant submits that the matter was brought to the plaintiff's attention as early as March 2021 by way of express notice from the defendant that the plaintiff had served no expert reports.
[31] The defendant’s position is effectively “the rules are the rules”. The defendant asserts that service of a report without an accompanying CV, and without the requisite acknowledgement of the expert’s duty, is not good service as contemplated by Rule 53.03. The defendant also points to the fact that the plaintiff has not brought a motion for abridgment of the time for service as envisioned by rule 53.03(4). That being the case, the defendant submits it was deprived of the opportunity to argue the effects of prejudice in the circumstances, that being the defendant’s litigation decisions may have been made differently had it received proper notice of the plaintiff's intention to produce an expert.
[32] The defendant therefore submits that the testimony of Mr. Flynn is not admissible at this trial.
Analysis
(1) Participant expert or Rule 53 expert?
[33] A witness with special skill, knowledge, training or experience, who has not been engaged by or on behalf of a party to litigation, may give opinion evidence for the truth of its contents without complying with rule 53.03. The opinion of such a witness must be based on the witness’s observation of, or participation in, the events at issue and, the witness must have formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training, and experience while observing or participating in such events: see Westerhof v. Gee Estate, 2015 ONCA 2016 at paras 59 – 62.
[34] Mr. Flynn was hired by the plaintiff's insurance company through their independent adjuster. He was hired the day the spill was discovered in order that he might prepare an origin and cause report. One of the primary purposes of such a report is to determine who is potentially liable. In other words, whether someone involved in the maintenance and running of the heating system, for example, the owner, a tenant, or service people, was negligent in their handling and operation of the equipment.
[35] It is no doubt true that Mr. Flynn did observe, or even possibly participate to a degree, in the events in question. It is also true that Mr. Flynn formed his opinion about the matter as part of the ordinary exercise of his particular skill, knowledge, training, and experience while observing or participating in the events in question. This alone would qualify him to give evidence as a participant expert.
[36] However, the fact remains that Mr. Flynn was retained by the plaintiff's insurance company who are themselves a party to the action by way of their subrogation rights. Mr. Flynn was hired to give an opinion about who was responsible for the oil spill. In other words, he was engaged by or on behalf of a party to this litigation. As such, he must comply with the provisions of Rule 53.03.
(2) Rule 53.03 compliance
[37] Given the shortcomings identified by the defendant in the service of Mr. Flynn’s report, it becomes necessary for me to consider whether the evidence of Mr. Flynn is admissible under the procedure set out in Rule 53.08 which reads as follows:
(1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. O. Reg. 284/01, s. 13.
(2) Subrule (1) applies with respect to the following provisions:
Subrule 30.08 (1) (failure to disclose document).
Rule 30.09 (failure to abandon claim of privilege).
Rule 31.07 (failure to answer on discovery).
Subrule 31.09 (3) (failure to correct answers on discovery).
Subrule 53.03 (3) (failure to serve expert’s report).
Subrule 76.03 (3) (failure to disclose witness). O. Reg. 284/01, s. 13; O. Reg. 260/05, s. 11.
[38] Rule 53.08 is mandatory: see Pavao v. Pinarreta, [1995] O.J. No. 1197. It is therefore necessary for me to consider whether admission of the evidence will cause prejudice to the defendant or will cause undue delay in the conduct of the trial. I take into account the following factors:
• Mr. Flynn formed his opinion in this matter on the basis of his skill, knowledge, training, and experience. He has been previously qualified to give expert opinion evidence in other cases and his evidence has been accepted by the courts.
• This is not a situation where counsel has suddenly unearthed, or otherwise sprung upon opposing counsel, an expert’s report on the eve of trial. Mr. Flynn's report was supplied to counsel for the defendant in the plaintiff’s pre-trial conference memorandum which is dated some 14 months prior to the commencement of this trial. The content of the report was apparently discussed in some detail in that pre-trial conference memorandum.
• Both counsel on this matter are highly experienced trial lawyers, each of whom has developed some considerable expertise in cases of this nature. Both counsel are clearly aware that actions of this nature usually include, if not require, expert evidence. Indeed, the defendant's Affidavit of Documents reveals that it consulted with, and hired, two experts, one to prepare an origin and cause report and one for a report on destructive testing on the filter. The defendant claimed litigation privilege regarding those reports and made a tactical decision not to call that evidence.
• It was also made clear to me through the comments of counsel during the course of the trial that each of them has on occasion retained the services of Mr. Flynn to assist them with other cases. Moreover, the fact that Mr. Flynn inadvertently addressed counsel by their first names on occasion demonstrated that he is also familiar with counsel.
• Counsel for the defendant also engaged in a very detailed and thorough cross examination of Mr. Flynn during his testimony in the voir dire on this issue. That typically requires some fairly extensive preparation on the part of counsel and an in-depth knowledge of, and familiarity with, the evidence in question.
• It is clear to me that counsel for the defendant had ample opportunity to familiarize himself with the content of Mr. Flynn’s report. His own prior experience with Mr. Flynn in other cases would leave him fully satisfied that Mr. Flynn was fully aware of his duty as an expert. That experience would also have made counsel for the defendant thoroughly familiar with the details of Mr. Flynn’s CV.
[39] In such circumstances I cannot perceive any prejudice to the defendant as a result of the admission of Mr. Flynn’s report pursuant to Rule 53.
(3) Admissibility generally
[40] Expert evidence will only be admitted when the following four criteria are all met: (i) relevance, (ii) necessity in assisting the trier of fact, (iii) the absence of any exclusionary rule, and (iv) a properly qualified expert: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.J. No. 36 at para 17.
[41] I am satisfied that the evidence of Mr. Flynn is directly relevant to the issue at hand, that being liability for the oil spill. His evidence addresses the origin and cause of the oil spill. It also addresses the issue of compliance with the regulatory code for the supply, installation, maintenance, and service of oil burning heating equipment, being the Ontario Installation Code for Oil-Burning Equipment-B139 – 2006 Edition, (the Code).
[42] I cannot myself claim any particular expertise or familiarity with the subject of oil burning heating equipment. Mr. Flynn’s evidence was, and continues to be, of assistance to me in understanding the process of maintaining such equipment.
[43] I am unaware of any exclusionary rule precluding the admission of this evidence, save and except for the provisions of rule 53, which I have already considered.
[44] I have already found that Mr. Flynn has the qualifications necessary to give expert opinion evidence on the origin and cause of the spill in question, as well as on the issue of compliance with the regulatory code for the supply, installation, maintenance, and service of oil burning heating and specifically B 139.
Conclusion on Issue #1
[45] I am satisfied that the evidence of Mr. Flynn meets the preconditions to admissibility and is sufficiently beneficial to the trial process to warrant its admission. I see no potential harm to the trial process that may flow from its admission.
[46] The evidence of Mr. Flynn given on the voir dire in this matter will therefore become evidence on the trial proper.
ISSUE #2: What was the origin and cause of the heating oil leak?
The evidence
- The Oil Burning Technician (OBT)
[47] As I have noted earlier in these reasons, Mr. Michael Foote, an oil burning technician in the employ of the defendant, attended the subject property on November 22, 2013, for the purpose of completing an annual inspection of the oil burning heating system.
[48] In the course of that visit Mr. Foote performed various inspection and service tasks, all of which were set out in the invoice that was supplied to the owner later that day. That invoice was made an exhibit in this proceeding. Mr. Foote’s notes on that invoice do not contain any reference to the spin-on filter located immediately adjacent to the furnace itself.
[49] Mr. Foote testified for the defence in this matter. He testified that part of his duties when performing maintenance of this kind is to check the system for leaks. He does so by visually inspecting each component and wiping it down in order to see if there's any oil present that should not be there. His evidence was that when he left the home that day the filter in question was “in good shape”. He also testified that he had no recollection of reading the manufacturers instructions on the filter however, he said he is only required to change the filter when he is of the opinion that it needs to be done. He did not feel that needed to be done in this case.
The Owner/Plaintiff
[50] Mr. Heyworth, the owner of the property, testified that when Mr. Foote returned to the property on October 10, 2014, Mr. Foote told him he had not replaced the filter on his previous occasion because he did not have a replacement filter in his truck that day.
The Expert
[51] Mr. Flynn give expert evidence on the origin and cause of this particular spill. As I have noted he was qualified to opine in that regard however, he was not qualified to give evidence on the question of when the filter came to be corroded, nor was he qualified to give evidence on the standard of care required of an OBT.
[52] Mr. Flynn’s expert opinion was that the cause of the heating oil leak was corrosion in the lower sidewall of the filter in question. Such corrosion is often found in places where oil tends to collect or is stored by virtue of a process called Microbial Influence Corrosion (MIC). This corrosive process is apparently caused by the presence and build up of water and sludge in places where oil may settle, such as fuel lines or oil containers.
[53] Mr. Flynn was quick to point out that he is not a metallurgist, nor is he qualified to give expert evidence on rates of corrosion. He did provide the court with a 1954 research study entitled “Internal Corrosion in Domestic Fuel Oil Tanks” which was made Exhibit 8 in this proceeding. This study concluded that MIC could cause sufficient corrosion to penetrate a 12-gauge steel tank, having a steel wall thickness of 2.5 millimeters, in approximately one year.
[54] The thickness of the wall of the filter in question is apparently .46mm, approximately 20% of the thickness of the tank wall used in the study. That fact would appear to support the notion that the wall of the general filter in question could be pierced by the MIC process in as little as 10 weeks.
Positions of the parties
[55] Neither of the parties disputes the fact that the filter in question was corroded and that the oil escaped through a corrosion hole in its side.
Conclusion on Issue #2
[56] Given the position of the parties, given Mr. Flynn's obvious knowledge and expertise, and given the evidence of Mr. Heyworth and Mr. Tillaart, I have no reason to question the proposition that the oil spill in question was caused by a leak in the filter found in the fuel line immediately adjacent to the furnace itself.
ISSUE #3; What is the standard of care the defendant is required to meet?
(1) The standard of care is to be found in the Regulation and the Code
[57] The case law I have been supplied with clearly establishes that the standard of care applicable to an OBT is based on the provisions of Ontario Regulation 213/01 (the “Regulation”), under the Technical Standards and Safety Act, 2000, (“the Act”), and the Ontario Installation Code for Oil-Burning Equipment, (“the Code”), known as B139. This legislation is commonly referred to as “the regime”.
[58] Ontario courts have consistently held that fuel oil suppliers and OBTs all owe a duty of care to persons to whom fuel is supplied or to persons whose furnaces and oil tanks they inspect and maintain: see for example Donleavy v. Ultramar Ltd., [2017] O.J. No. 6594, Maddock v. McRobert Fuels Ltd. [2009] O.J. No. 3167, and Thornhill v. Highland Fuels Dundalk Ltd., [2014] O.J. No. 2347.
[59] In the case of Gendron v. Doug C. Thompson Ltd. (c.o.b. Thompson Fuels), [2017] O.J. No. 3717, Charney J. describe the standard of care oil tank installers, suppliers and OBTs as follows:
I accept that standard of care can be derived from the applicable regulatory requirements as well as standard industry practices at the relevant time. The regulatory requirements established the minimum level of care. It is possible that industry practice imposes a higher duty in certain circumstances. The regulatory standards established by the TSSA, the National Standards of Canada’s “Installation Code for Oil Burning Equipment” (B139-M91 and B-139-00 as applicable at the relevant time) as well as the 2006 version of B139 (the Ontario Installation Code for Oil-Burning Equipment) are based on industry standards and are promulgated in consultation with members of the industry. These regulatory standards are responsive to technological changes in the industry and industry experience. These standards reflect safety and environmental concerns and are intended to protect a specific class of persons - the same concerns that inform common law tort duty. Industry members undergo training to ensure that they are up to date with respect to these requirements. In my opinion these regulatory standards are intended to codify the minimum standard of care to be taken by installers, suppliers and technicians and the breach of these standards is a breach of the duty of care: see Davis & McCauley Fuels Ltd., at paras. 30-34.
An appeal of Justice Charney’s decision was dismissed by the Ontario Court of Appeal; see Gendron v. Doug C. Thompson Ltd. (c.o.b. Thompson Fuels), [2019] O.J. No. 1865.
(2) Interpretation of the Regulation and the Code is a Matter of Law
[60] Generally, expert opinion evidence on domestic law is not admissible as domestic law is a matter for legal argument and legal analysis; see Lederman, Bryant & Fuerst, The Law of Evidence in Canada, 4th ed. (Lexis-Nexis Canada Inc., 2014) at para 12.164.
[61] Mr. Flynn testified that he helped draft the Code and continues to participate in the ongoing process of updates and revisions. In the course of his testimony he demonstrated a very thorough understanding of its provisions. However, I agree with counsel that this court’s interpretation of the relevant regulations and the Code must be based on the legal analysis and submissions of counsel, not on the opinion of a technical expert.
Conclusion on Issue #3
[62] I find therefore that compliance with the so called “regime” is the minimum standard of care expected and required of an OBT when installing and maintaining oil burning heating equipment.
ISSUE #4: Did the defendant breach the standard of care?
The Evidence
[63] The only evidence available about the condition of the filter in question, at the time the defendant first attended the home to service the system on November 22, 2013, comes from the OBT, Mr. Foote.
[64] Mr. Foote testified that he inspected the filter during his inspection of the system on November 22, 2013 and concluded it was in “good shape”.
[65] Mr. Foote said that he checks such filters for bubbles on their exterior surface, or paint coming off and things of that nature. He said he also checks for defects, leaks, and seepage. He said that he uses a dry hand to touch the filter to see if there is oil on it. He follows a three-step system which he described as “check it, wipe it, visual it”. He said the filter was “visually OK.”
[66] In cross examination Mr. Foote agreed with counsel's suggestion that the Code provides the minimum threshold for maintenance of an oil burning heating system. He agreed the Code requires that he do competent work, in a workmanlike manner. He also agreed that manufacturers instructions should be followed wherever possible because the manufacturer knows best.
[67] Mr. Foote testified that he is familiar with the provisions of clause 13.2.1 including the note appended to that section regarding compliance with manufacturers instruction. Mr. Foote agreed doing is good practice and that a prudent OBT would follow manufacturers instructions however, he testified that it was his understanding that a “note” in the Code was a “suggestion” only.
[68] Mr. Foote also testified that according to his understanding and interpretation of the Code it is not a requirement that an OBT conducting a maintenance inspection automatically change the Micron filter.
Positions of the parties
The plaintiff
[69] The plaintiff contends that the OBT failed to replace the filters required by section 13.2.4 of the Code which, according to the plaintiff’s interpretation, imposes a mandatory obligation on an OBT to replace the spin-on filter.
[70] The plaintiff further submits that the OBT did not replace the spin-on filter because he did not have a new one in his truck, something that he communicated both to Mr. Heyworth at his subsequent attendance at the property, as well as to his insurer in his statement of June 16, 2015.
[71] In the alternative, the plaintiff submits that Mr. Foote failed to inspect the filter as required by section 13.2.4 of the Code in that Mr. Foote visually inspected the filter but did not touch it, examine it, or read the label.
[72] As a result, the plaintiff submits that Mr. Foote failed to complete his work in a skillful, thorough manner as required under section 3.4.1 of the Code, and further, failed to identify an unacceptable condition, being the state of the filter, and to therefore tag out the system as required under the Regulation.
The defendant
[73] The defendant submits that the evidence of Mr. Foote, both during the trial and as read in from his examination for discovery, shows that he inspected the filter by both looking at it and using his hand to feel it. In doing so he satisfied himself that the filter was in good condition and not in need of replacement.
[74] The defendant further submits that section 13.2.4 of the Code requires an OBT to either inspect the fuel filter or, replace it with a type that is suitable for the installed system. By inspecting the filter Mr. Foote complied fully with the requirements of the Code.
Applicable statutory authorities
[75] As I have already noted, the governing statutory authority for an OBT performing an annual maintenance/service inspection of an oil burning heating system is contained in the Code.
[76] Section 13.2.1 of the Code reads as follows:
The owner of the oil burning equipment shall ensure that it is maintained in accordance with clauses 13.2 to 13.5 at least once per year.
[77] That section also includes a note which reads “Maintenance should also be in accordance with manufacturers instructions.”
[78] A review of s. 1 of the Code, which is entitled “Scope”, is of assistance regarding the wording of 13.2.1 as well as the note thereunder. Section 1.8 of the Code reads as follows:
In CSA [Canadian Standards Association] Special Publications, “shall” is used to express a requirement, i.e., a provision that the user is obliged to satisfy in order to comply with the standard; “should” is used to express a recommendation or that which is advised but not required; “may” is used to express an option or that which is permissible within the limits of the standard; and “can” is used to express possibility or capability. Notes accompanying clauses do not include requirements or alternative requirements; the purpose of a note accompanying a clause is to separate from the text explanatory or informative material. (my emphasis)
[79] Section 13.2.4 of the Code reads as follows:
Inspect the fuel filter, or replace it with the type that is suitable for the installed system.
[80] In my view, as s.13.2.4 currently reads, replacement of the filter is optional. The section gives an OBT the option of leaving the filter in place, assuming of course that an inspection shows the filter to be in good condition. If the drafters had intended any other meaning for the section, then they would surely not have used the word “or”. Had the drafters used the word “and” instead, or had they simply said “the filter shall be replaced annually” then the option of leaving the filter in place would not be available.
[81] It would appear that Mr. Foote was quite correct in his understanding and interpretation of the provisions of the Code regarding the question of replacement of the spin-on filter. The plain language of s.1.8, and of s. 13, establishes that the manufacturer’s instructions are not part of the Code, and therefore, are not part of the law of Ontario. They are only a suggestion.
[82] The question of whether the manufacturer’s instructions should be part of the law of Ontario is not the question I have been asked to decide.
[83] Mr. Foote was therefore not required to replace the spin-on filter, provided he first followed the other provisions of the Code by doing a workmanlike inspection of the filter in order to determine it was in good condition. Based on the evidence before me, it appears that he did just that. There is no evidence to prove he did not.
[84] Mr. Foote testified under oath that he performed an inspection by looking the spin-on filter over and examining it with his hand. When confronted in cross examination with the fact that he made no mention of inspecting the spin-on filter in his report on the service call, set out on the invoice, Mr. Foote quite candidly acknowledged that he may have forgotten to note it down. He then went on to observe that the fact the spin-on filter was not referred to in his report does not mean that the filter inspection did not occur.
[85] The only evidence before me about the condition of the spin-on filter at the time of the inspection on November 22, 2013 is that of Mr. Foote. There were no glaring inconsistencies in Mr. Foote’s evidence, either internally or when compared to the other evidence in the case. He readily acknowledged his oversight in failing to make mention of the inspection of the spin-on filter in his invoice. He agreed that he could have changed the filter even though he did not feel it was necessary. He also candidly agreed that manufacturer’s instructions are important. All of that, taken together with the absence of any concerns arising from his manner and demeanour while on the stand, left me with no reason to reject his evidence.
[86] Counsel for the plaintiff points to Mr. Heyworth’s evidence that when he asked Mr. Foote if he had changed the filter Mr. Foote responded by saying he did not have one on his truck at the time so he did not do so. Mention is also made by the plaintiff of the fact that in his statement to his insurer, Mr. Foote indicated he did not have a spare spin-on filter in his truck at the time of his November 2013 inspection.
[87] The plaintiff suggests this evidence establishes Mr. Foote knew the filter was faulty but did not replace it because he did not have a replacement filter on his truck. That is one possible inference that could be drawn from that evidence. However, other inferences may also be drawn from that evidence, including the possibility that Mr. Foote may well have considered replacing the filter, even though it appeared to be in proper working order, had he had a replacement filter available at the time.
[88] Triers of fact are often called upon to decide issues based on inferences that might be drawn from the evidence. That should only be done where the particular inference is the only one that could reasonably be drawn from that evidence. Where, as here, there are competing inferences available, it becomes a matter of supposition. Suppositions are not proof of anything, even on the low standard of proof on a balance of probabilities.
Conclusion on issue # 4
[89] I have already found that the applicable standard of care in this matter is found in the provisions of the “regime” and in particular, the Code. I have also found the requisite standard of care that an OBT is required to meet is compliance with the provisions of the Code.
[90] I have found that the Code does not specifically mandate the filter be changed by the OBT at each annual inspection/maintenance. Mr. Foote inspected the filter and found it to be in good condition. He left it in place. In choosing to do so, he did not breach the provisions of the Code.
[91] If the defendant did not breach the provisions of the Code, and if compliance with the provisions of the Code equates to the standard of care in these circumstances, then by extension, the defendant did not breach the standard of care.
ISSUE # 5: If the defendant did breach the standard of care, what is the quantum of damages owed to the plaintiff?
[92] As I have found the defendant did not breach the standard of care it is not necessary for me to consider this issue.
CONCLUSION
[93] For the reasons set out I find for the defendant. This action is dismissed.
[94] I thank counsel for their very thorough, and spirited, presentation of this case.
COSTS
[95] If the parties cannot agree between themselves on the question of costs, then they may address me on the issue in writing. Each party may file no more than 5 double spaced pages of written submissions, together with supporting materials, which shall include a costs outline for each party. The defendant shall serve and file its materials on or before March 4, 2022. The plaintiff shall serve and file its materials on or before March 11, 2022.
Smith, J
Released: February 1, 2022