Will oil tank leak litigation be a thing of the past? Not
likely, but it is interesting that in 2013 TSSA mandated that all
new tanks installed must be double-walled to help prevent fuel oil
This is not to say single-walled tanks are not still in use and
in fact comprise the majority of installations in residences
throughout Ontario and Canada. Unless specifically required by
changes to the Fuel Oil Code, pre-existing conditions which met
requirements of previous versions of the Code do not need to be
retrofitted. They are grandfathered in and the equivalent of a
legal non-conforming use.
The Fuel Oil Code (CSA B139) is not exactly a joy to read for
the lawyer, let alone a home owner and yet, places obligations on
home owners, not just on parties in the industry who are frequently
sued such as fuel distributors, tank installers and tank
Because litigation which arises now frequently deals with
installations from years ago, it is often relevant to look at the
various Fuel Oil Code changes over time and the manner in which
they have evolved in terms of their requirements.
The common element in most cases involving tank leaks due to
internal corrosion is water leading to what is called MIC
(microbial induced corrosion). The issue is whether tanks were
designed properly, installed properly and tested properly for
water. What you do if you encounter water is another issue in terms
of practicality, but there is much blame to be laid about who
should have tested for water and when.
Just going back as far as 2001, at that time the Fuel Oil Code
made no mention of testing tanks for water. As of 2002 there was no
specific tank age at which point the Code mandated that a tank
should be replaced. In 2004 manufacturers of oil tanks began to
indicate that tanks should be inspected for water. By 2006 the Code
required only side discharge tanks to be tested for water. In 2007
metallic end outlet tanks installed outdoors were to be tested for
water and where water is found the Code required that it be
removed. How that was to be done was not specified. The new version
of the CSA Standard was issued in 2009 but that was not adopted by
The next significant development was the directive issued by
TSSA in 2013 indicating that all new tanks need to be double-walled
to help prevent leaks.
That leaves ample scope for litigation with respect to existing
tanks. Industry experience shows an increasing number of tank
failures with respect to tanks of 10 years of age or less. Most
insurers now require that an oil tank be replaced every 10 years.
Even with that, it appears likely that for years yet to come there
will be leaks from tanks resulting in environmental contamination
and subrogated claims from insurers against the variety of usual
We are not out of a job yet.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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