Here's an update on the Sunrise
Propane explosion in Downsview, Ontario, and the gradual
progress of the class action by the aggrieved neighbours.
In July 2012, the Ontario's Superior Court of Justice certified a class action against all proposed
defendants except the Teskey defendants, which owned the properties
on which the Sunrise propane facility was located (2094528 Ontario
Inc. ("Teskey 209"), Teskey Construction Co. Ltd., Teskey
Concrete Co. Ltd. and HGT Holdings). The Court found that the
plaintiffs had failed to establish the first criterion of the
5-part test for certification [ s. 5(1)(a) of the Class Proceedings
Act, 1992] i.e., the proposed class proceeding failed to disclose a
cause of action.
In November, the Court heard a motion by the plaintiffs seeking to
amend the statement of claim and certify the action against the
Teskey defendants. The plaintiffs dropped the trespass action,
leaving three causes of action remaining: negligence, nuisance and
In one of the first analyses by a Court in a post-Smith v. Inco world, Mr. Justice Horkins found
that the plaintiffs failed to follow the clear directions set out
in that case, by not pleading the four criteria required to support
a claim in strict liability. Thus, their strict liability (Rylands)
Nor did the plaintiffs correctly plead nuisance; instead of
describing the tort in conformity with its legal definition, the
plaintiffs defined it in terms of a "dangerous propane
condition", which is not, per se, a nuisance. Justice
Horkins noted that an essential element of nuisance is significant
interference with a plaintiff's land; in this case, the
interference arose only when the explosions occurred and the
propane escaped onto adjacent property. Even reading the pleading
generously to allow for frailties in drafting, the nuisance claim
would fail: the Teskey defendants did not reasonably contemplate
that Sunrise would permit illegal truck-to-truck propane transfers
or smoking in the area, and that this would create the possibility
of an explosion occurring causing such damage.
The plaintiffs pleaded negligence based on the Occupiers'
Liability Act; this cause of action failed, as under that Act, the
occupier owes a duty to "persons entering onto the
premises", not to those who were not on the premises. At no
time did the plaintiffs allege that anyone in the class entered the
Murray Road premises.
As for common law negligence, the Teskey defendants argued that
there was no landlord/tenant relationship between Sunrise and
Teskey Concrete, Teskey 209 or HGT. Only Teskey Construction was a
party to the Sunrise lease, and as landlord exercised no control,
therefore did not owe the plaintiffs a duty of care.
The Court disagreed with the Teskey defendants' argument
that, at common law, a landlord is immune from the negligence of
its tenant. The Teskeys relied on cases that predated the
Occupiers' Liability Act, and which dealt with losses that
occur on the landlord's property; here, damage occurred off
site. The judge found the law is not settled in this area, and the
negligence cause of action should not be struck as against Teskey
Construction. It was not clear that the other three Teskey
defendants were not landlords.
Held: The Court certified the action as a class proceeding based
on negligence. The proposed statement of claim met the s. 5(1)(a)
criterion and granted the plaintiffs leave to amend the statement
of claim to reflect a single cause of action: in negligence,
against the Teskey defendants.
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