Fridays With Rogers Partners

At our muffin meeting, we discussed a decision released by the Court of Appeal this week which addressed liability for an oil leak and the test for causation.

In Donleavy v. Ultramar Ltd., 2019 ONCA 687, the Court of Appeal upheld the trial judge’s apportionment of liability of 40% on the plaintiffs and 60% on the fuel supplier, Ultramar. One half of Ultramar’s liability was apportioned to a company and technician that inspected the plaintiffs’ oil tank.

The decision shows that, prior to filling an oil tank, fuel suppliers must, at a minimum, comply with the regulatory regime to ensure that the tank is safe to fill. Oil burner technicians must also ensure that tanks comply with the regulatory regime.

At the same time, as stated by the trial judge, homeowners cannot “sit back and do absolutely nothing towards the maintenance of their fuel oil-burning heating system”.

The Court of Appeal also reiterated the correct test for causation. The “but for” standard should only be departed from in exceptional circumstances.

The “but for” test requires a plaintiff to prove, on a balance of probabilities, that without the negligence of one or more defendants, the injury would not have occurred.

The “material contribution” test only applies where there are negligent acts by multiple actors and it is established that one or more of them caused the injuries or losses, but the plaintiff is unable to determine which of a number of negligent acts caused the injuries or losses.

Therefore, as stated by the Court of Appeal, the critical threshold for the application of the material contribution to risk approach is the impossibility of proving which of two or more possible tortious causes is in fact a cause of the injury.