Torts - Negligence - Causation
Plaintiffs purchased property in 2002 and moved out in 2006. Plaintiffs built extension on their property and began renting out main home. Plaintiffs experienced oil spill at their residential property. Defendants fuel supplier and subcontractor were involved for number of years in supply of fuel oil to plaintiffs’ property. Plaintiffs brought partially successful action in negligence and breach of contract, with result that negligence was attributed to defendants at ratio of 60 percent. Trial judge relied on material contribution test to find that if proper comprehensive inspection had been conducted, then fuel oil tank would have been tagged, removed, and replaced, and to find that spill was precisely end result that would have been avoided if fuel supplier had fulfilled its obligations. Trial judge concluded that negligence of defendants in supplying fuel oil to non-compliant tank and in failing to properly conduct pre-delivery inspection were causes of discharge. Defendants appealed. Appeal dismissed. Trial judge’s findings were findings of “but for” causation despite fact that she stated that she was applying material contribution test. Where trial judge made findings that demonstrated that “but for” test was satisfied, her error in identification of applicable test was not reversible error. Although trial judge had not expressly articulated connection, it was implicit that if tank had been replaced by new outdoor tank, it likely would not have corroded and leaked.
Donleavy v. Ultramar Ltd. (2019), 2019 CarswellOnt 14122, 2019 ONCA 687, K. van Rensburg J.A., Paul Rouleau J.A., and M.L. Benotto J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 20114, 2017 ONSC 7438, Sylvia Corthorn J. (Ont. S.C.J.).
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