There is an interesting decision recently out of Orangeville
arising out of a residential fuel oil spill. The case is Thornhill v. Highland, a decision of
Mr. Justice Edwards. It is under appeal, although it is unknown
whether the appeal will go the distance.
Very few of these residential oil spill situations actually go
to trial. This case is very interesting. I would say it has
something in it for everyone.
First and foremost it shows that a plaintiff on a subro claim
for over a million dollars can get shut out. Mr. Justice Edwards
dismissed the plaintiff's claim on the basis that they could
not prove liability on any of the defendants. The defendants
comprised the usual group of players in any oil spill case being
the manufacturer of the oil tank, the service provider, the
installer and the fuel distributor.
Mr. Justice Edwards did go on to assess damages. There his
comments are most interesting. Depending on your perspective as to
what is good or bad, big picture his most interesting findings can
be summarized as follows:
he upheld the plaintiff being entitled to a standard of
pristine in terms of remediation rather than MOE standards;
he was extremely critical of the work done and the prices
charged by the remediation contractor hired by the plaintiffs'
insurer, reducing their charges by half; and
he dismissed the claim under the Sale of Goods Act
even though the tank failed at only 2 years.
The case is well worth a read and I will certainly be monitoring
the status of the appeal.
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