Lost Oil Tank: Action Dismissed

Brian Sunohara of our firm has handled numerous product liability and environmental claims involving leaks from oil tanks.

In some of these cases, the oil tank went missing before it could be fully inspected by experts.

Plaintiffs will sometimes argue that the cause of the leak can still be determined if a non-destructive examination of the tank was conducted before the tank was lost.

However, in Dupuis v. W.O. Stinson & Son Ltd., 2019 ONSC 5762, Justice Ryan Bell did not agree with this.

The defendant’s engineering expert outlined a number of steps that have to be taken to determine the cause of an oil leak from a tank:

• visual examination of the intact tank with photographs taken;
• cutting the bottom of the tank horizontally so the interior can be fully examined;
• removal of sludge to allow for scale and/or bacterial analysis;
• cleaning the bottom section of the tank interior to reveal corrosion patterns;
• sectioning of a test coupon of the leak region to allow for examination and identification whether the hole is interior, exterior or on both surfaces;
• performing metallography on the leak location to identify grain structure and corrosion morphology;
• SEM/EDX analysis to identify scale elements in close proximity to the leak; and
• chemical analysis of the steel as needed.

Justice Ryan Bell agreed with the defendant’s expert.  Her Honour stated that the loss of the oil tank rendered the causation analysis virtually impossible. The plaintiff would not be able to prove that, “but for” the negligence of one or both of the defendants, there would have been no oil leak.

Justice Ryan Bell’s determination was in the context of a motion to dismiss the action for delay.

Her Honour stated that the action had to be dismissed because the plaintiff did not provide a reasonable explanation for the delay and because, if the action was allowed to continue, the defendants would be prejudiced due to the lost oil tank.