A decision of the Ontario Superior Court earlier this year provides a valuable lesson to property owners whose homes were once heated with fuel oil.
Back in 1979, Mary and Francis Bingley decided to replace their old oil furnace and convert their heating system to natural gas.
They hired Stanzel Plumbing to perform the work and remove the oil furnace. For reasons nobody seems to remember almost 30 years later, the basement oil tank was left in place, along with the exterior oil fill pipe and the vent pipe.
Donald Stanzel tightened the cap on the oil fill pipe so it could not be removed by hand. He then bent the pipe down towards the ground to prevent it from being filled and to indicate that it was no longer to be used.
One day in 2001, 22 years later, John McDougall was making the rounds with his tanker truck, delivering furnace oil to various homes in the town of Smith Falls. As an employee of Morrison Fuels, he had been trained and certified for the transport and delivery of fuel oil.
On his 10th or 11th delivery of the day, he unfortunately misread a delivery ticket for a house on William St., thinking it said Russell St. In a hurry to complete the delivery at the house on Russell St., he missed a number of warning signs on the ticket and the house itself.
McDougall brought out a wrench, banged the cap loose, and straightened the pipe so he could pump fuel into it.
After he had pumped 933.4 litres of furnace oil into the wrong house, he looked at the delivery ticket and realized his mistake.
The old oil fill pipe was still connected to the tank in the basement, but unfortunately that tank had leaks. Even worse, the basement floor consisted of large exposed blocks of bedrock with vertical and horizontal soil seams. When the oil was pumped into the tank, it leaked onto the basement floor where it entered the soil and the groundwater.
The house was immediately rendered uninhabitable and serious environmental contamination occurred. Extensive remediation efforts have taken place since 2001, and are ongoing.
Total cost to date for the environmental cleanup is more than $767,000.
The Bingleys sued Morrison Fuels, which admitted negligence and reached a settlement with the homeowners on damages. That settlement did not, however, end the litigation.
Morrison Fuels brought a third party claim against Stanzel Plumbing, alleging that the Bingleys' damages were caused in part by the negligent actions of Stanzel when it failed to remove or permanently plug the fill pipes at the time the oil furnace was removed.
The trial of the third party action took place over four days earlier this year before Justice Lynn Ratushny.
After hearing the evidence, the judge ruled that Stanzel's decommissioning work in 1979 complied with the gas installation Code at the time. (It has since been changed to require removal of the fill pipes and tank.)
She wrote in her judgment that the old system was left in a "safe and secure" condition, and that Stanzel Plumbing could not reasonably have foreseen that an unauthorized fuel delivery would be made into the tightened and turned-down pipe.
The case against Stanzel Plumbing was dismissed and in a subsequent ruling, it was awarded $53,000 in costs against Morrison Fuels.
The lesson of the case is clear: If you have an old oil fill pipe or storage tank it should be removed immediately. Having your basement filled with fuel oil can ruin your whole day.
Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto. Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly. E-mail email@example.com
August 11, 2008Legal |