Interesting Decision in Fuel Oil Spill Case

September 16, 2014 | Elizabeth K. Ackman

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:

  1. he upheld the plaintiff being entitled to a standard of pristine in terms of remediation rather than MOE standards;
  2. 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
  3. 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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