2019 NLSC 211, 2019 NLSC 211

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Parsons v. Wm. Tapper Limited , 2019 NLSC 211 Date : November 29, 2019 Docket : 201501G3717 Between: RICHARD PARSONS Plaintiff And: WM. TAPPER LIMITED First Defendant And: BURSEY MANUFACTURING INC. Second Defendant And: CST CANADA CO. Third Defendant And: WM. TAPPER LIMITED First Third Party (Discontinued) And: WILLIAM TAPPER Second Third Party (Discontinued) And: CST CANADA CO. Third Third Party Before: Justice Robert P. Stack

Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: October 21, 2019

Summary: Wm. Tapper Limited, the first defendant, brought an application seeking a

summary trial pursuant to Rule 17A of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42. Sch. D ., seeking judgment against Mr. Parsons. Mr. Parsons entered into a contract with CST Canada Co., the third defendant, to supply and deliver home heating fuel, delivered the fuel to the home of Mr. Parsons pursuant to an agency agreement with CST. The fuel tank leaked and Mr. Parsons commenced this action against each of the three defendants. Mr. Parsons’ claim against Tapper is that:

(1) Tapper as a distributor of fuel oil to the general public owed a duty of care to him as a person to whom the fuel was delivered;

(2) Tapper breached the standard of care by its failure to undertake any quality control measures in relation to the fuel delivered; (3) he sustained damages; and (4) the damages were caused by Tapper’s breach. Tapper says that Mr. Parsons cannot prove his claim. The Court agreed and allowed the

summary trial application. As a threshold issue, Tapper satisfied the Court that: (

a) in the affidavit and other documentary evidence presented by all parties, there is an evidentiary basis for the defences to the claim; and (

b) it is appropriate to deal with the issue in this

summary manner. Although there is a genuine issue for trial, the Court was able on the whole of the record to find the facts necessary to decide that Mr. Parsons cannot succeed in his negligence claim against Tapper. Furthermore, it would not be unjust to decide the issues summarily. Even if the facts supported a finding that contaminated fuel supplied by Tapper to the new tank caused its failure, which they do not, then Mr. Parsons did not establish that Tapper was under a duty of care to obtain certification for the fuel that it delivered. The claim by Mr.

Parsons that Tapper supplied contaminated fuel to his fuel tank was dismissed. Costs were awarded to Tapper and to CST, but not to the second defendant which did not actively participate in the hearing. Appearances: F. Stephen Fitzgerald Appearing on behalf of the Plaintiff Terrence L.S. Teed, Q.C. Appearing on behalf of the First Defendant, the First Third Party and Second Third Party Brandon G. W. Gillespie Appearing on behalf of the Second Defendant Leanne M. O’Leary Appearing on behalf of the Third Defendant and the Third Third Party Authorities Cited:

CASES CONSIDERED: Curtis v. Smith’s Home Centre Ltd., 2010 NLCA 7; L.H.E. v. D.A.E., 2019 NLCA 66; Marco Ltd. v.Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.));Young v. Noble, 2016 NLCA 58; Hannam v. Farrell, 2007 NLTD 97; Hanke v. Resurfice Corp., 2007 SCC 7; Park Place Centre Ltd. v.Ultramar Ltd., 2010 NSSC 39; John’s Real Estate Ltd. v. Petrofina Canada Ltd. (1982), (NS CA), 57 N.S.R. (2d)322, 120 A.P.R. 322 (S.C.(A.D.)); Donleavy v. Ultramar Ltd., 2019 ONCA 687; C.W. McLeod Fisheries Ltd. v.

Irving Oil Co. (1978), (NS SC), 34 N.S.R. (2d) 114, [1978] 3 A.C.W.S. 195 (S.C.(T.D.)); Simon v. Imperial Oil Ltd., (NLSC), 1960 CarswellNfld 5, 45 M.P.R. 132 (S.C.). STATUTES CONSIDERED: Sale of Goods Act, R.S.N.L. 1990, c. S-6. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42. Sch. D. REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] In 2009 or 2010, Richard Parsons purchased a property at 367 Pouch Cove Road, Flatrock, Newfoundland and Labrador, fromhis mother. The domestic fuel tank was located in the basement and needed replacement. Mr.

Parsons engaged Warren Day to supplyand install a new tank in December of 2009. The new tank was manufactured by the second defendant, Bursey Manufacturing Inc., andhad a 909 litre capacity. It was installed outside the home. [2] Mr. Parsons entered into a contract with Ultramar Limited (now CST Canada Co., the third defendant, and referred to as“CST”) to supply and deliver home heating fuel. Wm. Tapper Limited, the first defendant (“Tapper”), delivered the fuel to the home ofMr. Parsons pursuant to an agency agreement with CST. There was no contractual relationship between Mr.

Parsons and Tapper. [3] On April 28, 2014, Mr. Parsons discovered that fuel had leaked from the new tank, causing contamination of his property. Mr.Parsons says the fuel leaked from a hole in the bottom of the new tank caused by corrosion and that the corrosion was caused bycontaminated fuel supplied by Tapper and/or CST. [4] Tapper says in response that there is no evidence that it delivered contaminated fuel to Mr. Parsons. In addition, it says it owedno duty of care to Mr.

Parsons to determine, or obtain certification of, the quality of the fuel it delivered. [5] In order to be successful in his claim against Tapper. Mr. Parsons must prove on a balance of probabilities that:

(1) Tapper as a distributor of fuel oil to the general public owed a duty of care to him as a person to whom the fuel was delivered;

(2) Tapper breached the standard of care by its failure to undertake any quality control measures in relation to the fuel delivered;

(3) He sustained damages; and

(4) The damages were caused by Tapper’s breach. [6] Tapper says that Mr. Parsons cannot prove his claim. It has therefore brought an application seeking a

summary trial pursuantto Rule 17A of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42. Sch. D. (the “Rules”). ISSUES [7] The following issues are before the Court:

(1) As a threshold issue, has Tapper, as the applicant for a

summary trial, satisfied the Court that: (

a) The affidavit and other documentary evidence presented by all parties (subject to the right to cross-examine deponents of

affidavits) provide an appropriate evidentiary basis for the defences to the claim; and (

b) At this preliminary stage, is it appropriate to deal with the issue in this

summary manner.

(2) If the

summary trial application meets the threshold test, then I must decide whether I should try all or some of the issues in this case summarily. This involves determination of the following questions: (

a) Is there a genuine issue for trial? (

b) If there is a genuine issue for trial, am I able on the whole of the record to find the facts necessary to decide that Mr. Parsons cannot succeed in his claims against Tapper? (

c) Would it nevertheless be unjust to decide the issues summarily? [ 8 ] At the outset of the hearing, Mr. Parsons conceded that he has no claim against Tapper in respect of failing to take care while filling the tank to prevent contaminants from entering the new tank or under the Sale of Goods Act , R.S.N.L. 1990, c. S-6 , as alleged in the third amended statement of claim. [1] The only remaining claim by Mr. Parsons against Tapper, therefore, is that it negligently supplied contaminated fuel to Mr. Parsons that it knew, or ought to have known, would cause corrosion of the new tank and cause it to leak. Rule 17A [ 9 ] Tapper has applied for

summary trial and judgment pursuant to Rule 17A. Rule 17A.01(1) provides: A plaintiff or defendant may, ... apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all or part of the claim in the statement of claim, as the case may be. [ 10 ] Pursuant to Rule 17A.02, evidence may be adduced by affidavit, by answers to interrogatories, or by evidence taken in examination for discovery. Rules 17A.02(3) and (5) provide for cross-examination on affidavits. [ 11 ] Rule 17A.03(2) authorizes a judge to dispose of an application by way of

summary judgment even if there is a genuine issue for trial: Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment in favour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide the questions of fact or law; or (

b) it would be unjust to decide the issues on the application. [ 12 ] In Curtis v. Smith’s Home Centre Ltd. , 2010 NLCA 7 , at paragraph 9 , the Court of Appeal described the circumstances where

summary trial may be a suitable procedural approach to litigation: The trial judge may find that even though there is a genuine issue for trial disclosed in the statement of claim, such a genuine issue may nevertheless be decided in a

summary way without the need for a full trial under Rule 17A.03. This jurisdiction of a judge conducting a

summary trial is fundamental to the purpose of Rule 17A governing

summary trials by facilitating decision-making on contentious but straightforward issues between litigants without incurring unnecessarily burdensome trial costs. [ 13 ] In the recent decision of the Court of Appeal in L.H.E. v. D.A.E . , 2019 NLCA 66 , Welsh J.A. stated for the majority at paragraphs 12 and 13: 12 An application under rule 17A engages a two-step process. The analysis begins with a threshold question, that is, “whether the case is appropriate for

summary adjudication” ( Young v. Noble , 2016 NLCA 58 , 1 C.A.N.L.R. 197 , 411 D.L.R. (4th) 223 , at paragraph 23 ). In Young v. Noble , Green C.J.N.L. explained: [27] It is important to appreciate, however, that the threshold question that can, on these authorities, be determined in advance of the

summary trial proper is truly a threshold question directed to determine whether, on the matters raised in the application, the case appears to fall within the

summary trial rule, whether the applicant has provided some evidentiary basis for the assertions made and whether the nature of the case is such that it is potentially capable of being dealt with in the attenuated manner contemplated by a

summary trial, bearing in mind the comments of the Supreme Court of Canada in Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87 (S.C.C.) about the salutary uses of such a procedure to ensure access to justice in appropriate cases.

[28] Such a threshold question is distinct from another similar question that may arise in the course of the

summary trial itself:whether, even if the applicant fails to establish that there is no genuine issue for trial, the court should, nevertheless, on the

summarytrial record, determine the legal and factual issues that have been raised. That requires a determination, within the language of rule17A.03(2) of the Rules of the Supreme Court, 1986, whether the judge “is unable on the whole of the evidence before the Court ... tofind the facts necessary to decide the questions of fact or law” and whether “it would be unjust to decide the issues” by way of

summarytrial. Even though a judge may have decided, on a preliminary threshold screening as described above, that the

summary trial procedureshould be proceeded with, this latter inquiry is, of necessity, still at large and may have to be addressed and dealt with at the

summarytrial hearing itself. 13 Depending on the circumstances and the submissions of the parties, the threshold question may be dealt with either in advance ofor at the same hearing as when the second step, a

summary trial, is conducted (Young v. Noble, supra, at paragraph 26). Further, rule17A.03(2) permits judgment to be granted on “an issue or generally”. The two-step approach referenced in paragraph 12, above, applies in either case. Depending on the circumstances,bifurcation of the issues may or may not support proceeding under rule 17A in a given situation. [14] Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317(Nfld. S.C.(T.D.)), commonly referred to as “Marco No. 1”, sets out 15 principles “as a guideline to the approach to the application ofthe

summary trial rule in this jurisdiction”. The third principle Green J. (as he then was) enunciated at paragraph 76 sets out the burdenTapper must meet in order to satisfy the threshold issue. In a case where the other party has the burden of proof on the merits, theapplicant must put forward an evidentiary base establishing a defence to the claim as defined in the pleadings “or tending to show thatthe other party’s claim has no substance to it”. [15] In Young v. Noble, 2016 NLCA 58, at paragraph 27, the Court of Appeal stated an additional consideration in determiningwhether an application passes the threshold for determination by

summary trial: … whether the nature of the case is such that it is potentially capable of being dealt with in the attenuated manner contemplated by asummary trial, bearing in mind the comments of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87(S.C.C.) about the salutary uses of such a procedure to ensure access to justice in appropriate cases. [16] The onus is on Tapper as the applicant to establish that the threshold issue has been satisfied under Rule 17A. However, onceevidence is submitted to support the application, the onus shifts to the respondent, in this case Mr. Parsons, to prove that a judgmentunder a

summary trial would be unjust. [17] In Hannam v. Farrell, 2007 NLTD 97, at paragraph 10, Handrigan J. said: 10 The party applying must also put forward evidence which supports each element of its claim, counterclaim or defence, as the casemay be. If it does, the onus shifts to the responding party, if it opposes the application, to show there is a genuine issue for trial and that it would be unjust to decide the issue on the application. Each party must "put its best foot forward" whenmaking or opposing a Rule 17A application. [18] Consequently, in response to the application for

summary trial, Mr. Parsons was required to “put his best foot forward”. [19] It was agreed that the threshold question will be dealt with at the same hearing as the

summary trial. Therefore, I must firstdecide whether Tapper has established that the case is appropriate for

summary adjudication. That is: whether, on the matters raised inthe application, the case appears to fall within the

summary trial rule; whether there is some evidentiary basis for the assertions made;and whether the nature of the case is such that it is potentially capable of being dealt with in the attenuated manner contemplated bya

summary trial. If I find that the case is appropriate for

summary adjudication, then I must determine whether there is a genuine issuefor trial. If there is, I must then determine whether I am able on the whole of the evidence before me to find the facts necessary todecide the questions of fact on law and, in any event, whether it would be unjust to do so by way of

summary trial. [20] This decision will come down to whether Mr. Parsons can prove on a balance of probabilities that the fuel delivered by Tapperwas contaminated by water and that the contaminated fuel caused the new tank to fail. As we will see, I have found that the failure of thenew tank was likely caused by contaminated fuel. However, I have also found that there was fuel pumped over from the old tank to thenew tank and that it was that pumped-over fuel which was likely the source of the corrosive contamination.

That is, I have found that Mr.Parsons has not proven on a balance of probabilities that Tapper delivered contaminated fuel to his home. In any event, even if the fueldelivered by Tapper was contaminated, I have found that Tapper owed no duty of care to Mr. Parsons to obtain certification that the fuelwas free of contaminants. Consequently, I have found that Mr. Parsons has not established that any negligence on the part of Tapper wasthe cause of the failure of the new tank. [21] Let us see why I have determined that this is an appropriate matter for a

summary trial and why I have come to the forgoing

conclusions. Because the issues will be decided largely based upon the expert evidence adduced by the parties, we will begin there. The Expert EVIDENCE [ 22 ] Mr. Parsons and CST each retained an expert to opine on the cause of the tank’s failure and the source of water in the new tank. No issue was taken on the

summary trial with the appropriateness of Dr. Herbert A. Hancock, for Mr. Parsons, and Mr. Michael Freill, for CST, providing expert opinion evidence. [ 23 ] Dr. Hancock is a metallurgist of considerable experience and has been qualified to provide expert opinion evidence in the past. Mr. Freill is a professional engineer who has a consulting business specializing in residential fuel storage systems. He, too, has been qualified by a court to provide expert opinion evidence in respect of such matters. I am satisfied that this is an appropriate case for such expert opinion evidence and that each of Dr.

Hancock and Mr. Freill is a properly qualified expert. Dr. Herbert A. Hancock [ 24 ] Contrast Engineering Limited (“Contrast”), a forensic engineering company, was retained by Mr. Parsons’ insurers shortly after the fuel oil spill to conduct a metallurgical examination of the tank and to provide an opinion as to the cause of the tank’s failure. [ 25 ] Contrast took possession of the tank and sent three sections of the bottom of the tank and a sample of the fuel remaining in the tank to Dr. Hancock for analysis. [ 26 ] Following his analysis, Dr.

Hancock prepared a report (the “Hancock Report”) in which he concluded as follows: 6.0 Conclusions 1. The tank failed as a result of pitting corrosion which initiated on the inside on the bottom. 2. In my opinion, the corrosion was caused by a pool of salty water which had accumulated at the bottom of the tank. 3. There were strong indications that the normal corrosion process was augmented by the action [of] microbes. 4. In my opinion, the most probable source of the water was contaminated fuel oil delivered to the tank. 5.

There were no metallurgical defects in the construction of the tank which would have led to its failure. [ 27 ] As can be seen, Dr. Hancock opined both on the cause of the failure of the new tank (corrosion caused by salty water in the new tank) as well as on the probable source of the salty water itself (contaminated fuel delivered to the new tank). As I have mentioned, no objection was made to him providing both opinions. [ 28 ] On cross-examination, Dr. Hancock confirmed that the source of the water in the new tank was a matter of debate.

He testified that he had not been made aware of a possible pump-over of oil from the old tank to the new tank on its installation. Nor did he consider the possibility that the source of the water in the tank may have been condensation. Dr. Hancock agreed that a pump-over of fuel could have been a possible source of the water in the tank and that he had no information upon which he could eliminate that as a cause of the failure. In his opinion, however, a pump-over of fuel would be a likely cause of the tank failure if the previous tank had failed, but it had not. [ 29 ] As to condensation, Dr.

Hancock did not think that it would be the cause of the water in the new tank because the water was salty and water left by condensation is clear, almost like distilled water. Consequently, he was of the view that the source of the water would have to be from outside the new tank. [ 30 ] From photographs, Dr. Hancock was aware that there was rust on the top of the tank.

He agreed that this would be caused by condensation and he agreed that the water would fall to the bottom of the tank, although he reiterated that the chemical composition of the water at the tank bottom was not consistent with condensation. [ 31 ] Although Dr. Hancock was not aware of a possible pump-over of old fuel into the new tank, in his report he comments on the tank failing after four and three-quarters years [2] , which is considerably shorter than its expected service life.

He went on to say, “There are tanks which fail after a much shorter service life but there are usually indications that these tanks have had oil transferred to them from a previous tank where the corrosion process had already been entrenched.” [ 32 ] Although Dr. Hancock did not testify as to any knowledge of the old tank and its state on being removed from the home, he opined that if it contained salty water, then it would likely have failed before the pump-over.

[ 33 ] On re-examination, Dr. Hancock confirmed that he would expect a tank to fail very quickly following a pump-over, that is, within a year to a year and a half. Mr. Michael Freill [ 34 ] CST participated in the

summary trial application brought by Tapper because it has implications for Mr. Parsons’ claims against it. In doing so, CST takes the position that Mr. Parsons has the burden of proof and must establish a prima facie case of negligence or breach of contract. That is, CST takes the position that the defendants need not adduce any evidence if Mr. Parsons has failed to establish such a prima facie case. I will address this issue later in these reasons. [ 35 ] Nevertheless, CST retained a metallurgical expert, Michael Freill, P.

Eng., to prepare a report (the “Freill Report”) as to the cause of the new tank’s failure. The Freill Report canvasses potential sources of water in the new tank in detail and excludes those that Mr. Freill believes are unlikely. Mr. Freill ultimately concludes that the most probable cause of the water in the new tank was the pump- over of fuel from the old tank, along with condensation: In order to have pitting corrosion in the tank bottom water must be present as Dr. Hancock had noted.

The evidence also supports the presence of Microbiologically Influenced Corrosion (MIC), in fact, in my opinion a classic case of MIC. I would disagree with Dr. Hancock’s conclusion that the source of this water came from the fuel oil delivered to the tank via a home comfort truck.

It is my opinion the water and corrosive material originated during the installation process from a pump-over procedure with additional water being introduced from natural condensation within the tank. [ 36 ] The Freill Report bases its primary conclusion, that the most probable source of water in the new tank was the pump-over of fuel oil from the old tank, on the severity and extent of the corrosion in the new tank as well as on the fact that it failed ten years prior to its maximum life expectancy. Mr.

Freill states that the extent of the corrosion in the new tank indicates that the contaminant was introduced very early on in its service life. The Freill Report states: The process of pump-overs is known to cause bacteria and water contamination to be transferred into the new tank. The water and bacteria are known to cause MIC corrosion almost immediately when in contact with a new tank surface. The severity and extent of the corrosion in this tank is evidence the contaminant was introduced very early in its service life.

The pump-over process is known to cause premature failure in steel tanks and there is evidence in this case that is what has happened based on the severity and extent of corrosion found on the tank bottom. [ 37 ] The Freill Report bases its secondary conclusion, that some additional water was introduced to the new tank by way of condensation, on evidence of corrosion on the internal top

section of the new tank and on statistics showing high frequencies of condensation in outdoor fuel tanks in Prince Edward Island. [ 38 ] The Freill Report opines that it is unlikely that the source of the water in the new tank was fuel which was contaminated at the time of delivery: Water Entering from the Distribution Supply System Water has the potential of traveling through the supply system and entering the tank through the refilling operation at the home, however, based on quality control processes it is extremely rare and highly unlikely.

All fuel suppliers must by law refine/purchase and distribute fuel which meets the minimum CGSB standard in Canada. This specification has a maximum water content of 0.02 % by volume. The supply system in most cases is well designed to eliminate and remove any water. Water is heavier then [sic] heating oil, which allows it to settle and drained in terminal storage systems preventing it from entering a fuel delivery truck. In my past career role working in the Quality Assurance Department for Imperial Oil I was responsible for overseeing the quality control processes at major Atlantic Canada fuel terminals.

Water testing and removal is a standard test and procedures to remove it, if found, are well established and have been around for many years. In the case of marine transport, ships are well designed and equipped with dealing with water. Ships have segregated ballast preventing any ballast water from contaminating a fuel compartment. When a ship arrives and prior to offloading any fuel cargo, the compartment is dipped for water and if found is removed through a stripping process. This ensures the fuel being delivered to the terminal is “on” specification when it arrives into the tank.

Checks are made after delivery to confirm the quality remains “on” specification prior to commencing truck loading. Deliveries of fuel made to the Flatrock NFLD area originates [ sic ] from the Irving terminal in the Southside of St. John’s then delivered directly to customers without going through a secondary distribution system. Given the strict quality control procedures at the terminal there would be little chance of water contamination in the fuel originating from the terminal. It is my opinion the water did not originate through the distribution system. [ 39 ] Mr.

Freill, on cross-examination, confirmed his opinion that water becoming contaminated as a result of the distribution system would be very rare. He was not aware of any tank failure caused by any such contamination. He would expect to have been aware of any such incident. [ 40 ] Mr. Freill referred to the Canadian General Standards Board (“CGSB”) standard in Canada which applies to all fuel suppliers who refine or purchase and distribute fuel. He testified that the standard does not apply to a company such as Tapper because it is a customer of the distribution system.

It does not “touch the fuel” and trusts the system. That is, industry standards do not require Tapper to test or obtain certification of the fuel. In Mr. Freill’s view, the situation is analogous to a person buying gasoline at a service station –

you trust that the fuel meets the specifications. [ 41 ] According to Mr. Freill, this is the same as for a company such as CST which, in this case, acquired fuel oil from the Irving facility on the South Side of St. John’s. The fuel stored there is collected in batch quantities and subjected to “50 some” tests. Samples are retained for a year. Given the strict quality control procedures, CST can expect that the fuel meets the applicable standards and specifications. In Mr. Freill’s view, this is a fundamental part of the business; they could not operate otherwise.

This is because fuel has to be handled properly to avoid cross-contamination which is very dangerous. [ 42 ] Mr. Freill came to the conclusion that old fuel had been pumped over to the new tank by reading the discovery transcript of Mr. Parsons who indicated that although he had not seen the pump-over, he witnessed the old tank on the truck. Mr. Freill testified that the old tank could not be moved unless it was drained because it would be too heavy and would leak fuel from its various openings. [ 43 ] Furthermore, Mr.

Freill testified that a safety test to check all of the tank components is required when a new tank is commissioned. This consists of either filling the tank at least three-quarters full or testing it under pressure. Most commonly, a tank is simply filled. [ 44 ] Mr. Freill noted that for the most part, tank manufacturers prohibit the pump-over of old product into a new steel tank. He was not certain of the policy of the manufacturer of the new tank. [ 45 ] Mr.

Freill commented that fuel tanks kept indoors are significantly less likely to fail because of corrosion associated with condensation than tanks stored outside; 85% of failures in P.E.I. occurred in outside tanks. He acknowledged, however, that the old tank had been stored inside. This would make it less likely to contain water from condensation. Moreover, when asked if he was suggesting that the salt content in the new tank came from condensation, Mr. Freill agreed with Dr. Hancock that the process of condensation distills the water thereby removing any salt. [ 46 ] Mr.

Freill was taken to the part of his report where he said that he was surprised that the new tank had not failed sooner. He agreed that the corrosion was so severe that he would have expected it to fail earlier. He opined that it must have had a good paint job because once the tank has corroded through the metal, the paint, which is non-corrosive, can contain the fuel for a period of time. [ 47 ] On re-examination, Mr. Freill confirmed that delivery drivers are not trained to test fuel.

Much care is required when handling petroleum products, and it is not desirable to have people in the field do such testing. analysis Step 1: The Threshold Issue [ 48 ] The procedure on a Rule 17A application contemplates that the application must pass the “threshold” test before the Court will proceed to hear the matter on the merits by way of

summary trial. [ 49 ] As we have seen from Marco No.1 , Tapper, as a defendant, must point me to an evidentiary basis that either establishes a defence to the claim as defined in the pleadings or tends to show that Mr. Parsons’ claim has no substance to it. [ 50 ] The claim by Mr. Parsons against Tapper is that Tapper owed him a duty of care to take reasonable steps to ensure that he did not receive contaminated fuel.

Although at the outset of the hearing, his counsel suggested that Tapper breached the standard of care by failing to test the fuel, ultimately it was submitted that the standard of care required only that Tapper, at the time the fuel was loaded onto his truck, obtain some type of certification as to the quality of the fuel. It is in light of the claim framed in this way that I must examine Tapper’s application under Rule 17A. The Nature of the Application [ 51 ] Tapper takes the position that Mr.

Parsons’ claim should be dismissed because there is no evidence that it failed to take reasonable care to prevent contaminated fuel oil being delivered to the new tank. Mr. Parsons responds by saying that Tapper has asserted a defence to a claim that has not been made insofar as he no longer alleges Tapper caused or permitted contaminated fuel oil to be put into the new tank. Rather, says Mr. Parsons, his claim is that:

(1) Tapper was CST’s agent for the delivery of fuel to Mr. Parsons’ tank from the date of its installation in 2009 to 2014 when it failed. Mr. Parsons purchased all of his fuel from CST;

(2) Mr. Parsons did not purchase fuel for the tank from any other fuel provider during this time period;

(3) Following the tank’s failure in 2014, some of the remaining fuel in the tank was analyzed by Dr. Hancock, who concluded that the fuel was contaminated by salty water and that “… the most probable source of the water was contaminated fuel oil delivered to the tank”;

(4) By Tapper’s own evidence it is clear that Tapper would not know whether any of the fuel they delivered to the tank was contaminated or not, since they did not perform any quality control, testing or inspections in relation to any fuel oil that they delivered, including all of the fuel oil that they delivered to Mr. Parsons’ tank. [ 52 ] Mr. Parsons submits, therefore, that Tapper has failed to present an evidentiary basis for its defence to the allegations that it was negligent by delivering contaminated fuel oil to the tank and, therefore, it is not appropriate for Tapper to proceed by way of

summary trial.

[ 53 ] I agree with counsel for Mr. Parsons that Tapper’s submissions at the hearing of the matter differed from how the application was initially framed. I acknowledge that the application took a turn insofar as in his memorandum of fact and law, Mr. Parsons conceded that the only claim remaining against Tapper is as set out in paragraph 14(

b) of the third amended statement of claim for failure to obtain certification that the fuel delivered by it was free of contaminants. [ 54 ] Nevertheless, Mr. Parsons did not object to the application proceeding notwithstanding his concession on the issue addressed by Tapper in the application itself. Furthermore, the issue of whether, as a question of fact, Tapper supplied contaminated fuel to Mr.

Parsons was fully canvassed in the materials, both evidentiary and legal, that were before the Court. [ 55 ] During the hearing, questions were asked by me regarding the extent of the case law applicable to the allegation of negligent supply and as to the evidence before me. Counsel for Mr. Parsons made no objection to these lines of inquiry and at no time sought that the matter not proceed because I was being asked to decide the issue of negligent supply. Nor did Mr.

Parsons seek a postponement in order to adduce further evidence or make additional legal argument on the supply issue. [ 56 ] Consequently, I am satisfied that I can decide the issue of the supply of fuel based upon the material before me notwithstanding any deficiencies in the form of the applicant. It would not be unfair to Mr. Parsons to do so. He had full opportunity to address the issue both in terms of the evidentiary record he filed with the Court, in his legal brief, at the hearing of the matter by cross-examining Mr. Freill, and in his submissions.

The Evidentiary Burden [ 57 ] As to the substance of the claim, in his memorandum of fact and law Mr. Parsons argues that neither Tapper nor CST presented a sufficient evidentiary basis for their respective defences. That is, he says, neither Tapper nor CST submitted evidence to counter Dr. Hancock’s opinion as to the source of the water in the tank. Tapper and CST submit that they are not required to submit any evidence to counter Mr. Parsons’ evidence.

In negligence, they submit, a plaintiff bears the burden of showing on a balance of probabilities that “but for” the negligent act or omission of another party, the injury and damage would not have occurred ( Hanke v. Resurfice Corp. , 2007 SCC 7 ). [ 58 ] Tapper and CST argue that Mr. Parsons has not established, on a balance of probabilities, that the fuel supplied by CST and delivered by Tapper was contaminated with water or otherwise at the time of delivery.

Furthermore, they say, other probable causes of the water in the tank that could have led to the corrosion of the tank have not been addressed, or excluded, by the evidence adduced by Mr. Parsons. Therefore, it is the position of these two defendants that the evidence adduced on behalf of Mr. Parsons does not establish a prima facie case of negligence. [ 59 ] If, on the evidence adduced by Mr. Parsons, Tapper can establish that Mr. Parsons has not met onus of proving his case on a balance of probabilities, then Tapper can be successful on the

summary trial application without adducing any evidence of its own. This is what is meant in Marco No. 1 by permitting a defendant to point to evidence, whether its own or that of the plaintiff, “tending to show that the other party’s claim has no substance to it”. [ 60 ] Nevertheless, after the memorandum of fact and law was filed on behalf of Mr. Parsons arguing that the defendants had not adduced any evidence to support their respective defences, CST filed the Freill Report and a supplementary memorandum.

Conclusion on the Threshold Step [ 61 ] I am satisfied that Tapper has met the threshold requirement under Rule 17A because it has established that there is an appropriate evidentiary basis, by way of the affidavit and other documentary evidence presented by all parties, for its defences to the claim made that it negligently supplied contaminated fuel to Mr. Parsons. [ 62 ] I also find that at this preliminary stage, it would be appropriate to deal with the issue in this

summary manner. As I have indicated above, I am satisfied that based upon the record before me, including the cross-examination of the two expert witnesses, that the matter can be appropriately resolved in a

summary manner. In addition, the parties referred me to a substantial body of case law which each argues supports its position. A

summary consideration of the matter will achieve both efficiency and proportionality. Step 2: Has the evidentiary record filed by Mr. Parsons in response to the application demonstrated that there is a genuine issue for trial? [ 63 ] Being satisfied that the application meets the threshold issue, the next issue is whether Tapper has established that there is no genuine issue for trial ( Marco No. 1 at para. 76). [ 64 ] Here Tapper has not met that burden. Although it maintains that it did not owe a duty of care to Mr.

Parsons to inspect or otherwise obtain certification of the fuel, it is necessary to consider the evidentiary record before me and to apply the law argued by the parties to make that determination. If such a duty of care were to be established, then the same material would have to be examined to see whether Tapper breached the standard of care. Because resort must be made to the evidence adduced and the case law in order to determine these issues, I am satisfied that there is a genuine issue for trial.

Step 3: If there is a genuine issue for trial, can the Court, on the whole of the record, find the facts necessary to decide that Tapper negligently supplied fuel to the new tank that was contaminated and would it nevertheless be unjust to decide the issues summarily? [ 65 ] Because I have found that there is a genuine issue for trial, I will go on and address whether, as raised by Rule 17A.03(2), I am “unable on the whole of the evidence before the Court … to find the facts necessary to decide the questions of fact or law” or whether “it would be unjust to decide the issues” by way of

summary trial. [ 66 ] Tapper, although maintaining that there was no duty of care as alleged owed to Mr. Parsons, submits that even if it is found

otherwise, then it is still appropriate to determine the issue by

summary trial because there is a sufficient evidentiary basis for adjudication. That is, Tapper and CST submit that the evidentiary record shows that Tapper met the standard of care owed to Mr. Parsons – therefore, they say, it would not be unjust to dismiss his claim in the circumstances. [ 67 ] Mr. Parsons, on the other hand, seeks to have it both ways. He argues that it would be unjust to decide the matter on a

summary basis for two reasons: first, because the amount claimed is significant, being $412,232.69 for special damages relating to the restoration of his property and reconstruction of the home, plus other amounts; and second, because the evidentiary record includes the technical report of Dr. Hancock, the matter is complex. These factors, he says, militate against me exercising my discretion to proceed by way of

summary trial. [ 68 ] At the same time, however, Mr. Parsons submits that he has presented sufficient evidence that proves, on a balance of probabilities, that contaminated fuel caused his tank to fail, resulting in significant damage. Furthermore, he says, he has proven that the likely source of the contaminated fuel was fuel sold to him by CST and delivered by Tapper. Thus, he says, a judgment against both Tapper and CST in negligence could be found following this application for

summary trial. [ 69 ] On the record before me, I fail to see how I could find the record insufficient for the matter to be resolved on a

summary basis against Mr. Parsons but, on the same evidence, I could make a substantive finding in his favour . I agree with Tapper and CST that there is ample evidence before me upon which I can decide the issue of whether Tapper negligently supplied contaminated fuel to Mr. Parsons. [ 70 ] Here, the facts can be determined based upon the discovery evidence of Mr. Parsons adduced by CST, the affidavits sworn on behalf of the parties, and the reports and testimony of the two expert witnesses.

Although there are different inferences each of the experts would have me draw from their respective evidence, this was not a classic battle of credibility. Both expert witnesses were knowledgeable and credible and, except as noted below, each presented an honest and well-considered assessment of the matter. [ 71 ] I am therefore satisfied that there is an evidentiary record upon which I can find the facts and apply the law so as to decide the issues before me. I also find that it would not be unjust to do so in this

summary trial. Has Mr. Parsons proven on a balance of probabilities that the CST fuel delivered by Tapper was contaminated? [ 72 ] Tapper can only be found to have caused the damages claimed by Mr. Parsons if he proves that the fuel it delivered was contaminated. If Mr. Parsons cannot prove this on a balance of probabilities, then he cannot be successful in his claim against Tapper. [ 73 ] As we saw, Dr. Hancock concludes at page 12 of his report: 1. The Tank failed as a result of pitting corrosion which initiated on the inside on the bottom. 2.

In my opinion the corrosion was caused by a pool of salty water which had accumulated at the bottom of the Tank. … 4. In my opinion, the most probable source of the water was contaminated fuel oil delivered to the tank. [ 74 ] Tapper relies on these opinions to establish that Tapper negligently caused his damages. Yet, Dr. Hancock was equivocal about the source of water in the new tank. At page 10 of his report he stated: It is generally agreed that the internal corrosion of domestic oil storage tanks is caused by the presence of water in the tank. The source of the water is a matter for debate.

Some support the theory that it is caused by condensation, others leakage of rain or snow. In my opinion, in most cases the most probable cause is contamination of the fuel oil before it has been delivered to the domestic storage tank. There was not a lot of water in this tank. By a rough calculation there was about 50 ml of water. There were some rust spots on the interior of the top of the tank which indicates that some of the water may have resulted from condensation. [ 75 ] Moreover, at page 11, in relation to the pump-over, he stated: In is my understanding that the tank was installed in mid 2010.

It failed after being in service for about 3¾ years which is considerably shorter that the normal life expectancy of a domestic steel fuel storage tank. There are tanks which fail after a much shorter service life but there are usually indications that those tanks have had oil transferred to them from a previous tank where the corrosion process has already been entrenched. [ 76 ] On cross-examination, Dr.

Hancock testified that when he prepared the Hancock Report, he was unaware of any suggestion that there had been a pump-over of fuel from the old tank. [ 77 ] Both experts agree that the tank failure likely resulted from contaminated fuel being pumped into it which caused it to corrode to the point of failure. Dr. Hancock implies that the fuel from CST delivered by Tapper was contaminated when pumped into the new

tank. Mr. Freill, on the other hand, says that it is more likely that there was contaminated fuel in the old tank that was pumped over into the new one. Whether or not fuel from the old tank was transferred to the new tank is a question of fact for determination by me as the trial judge. Am I able to find on the evidence before me that there was a pump-over of fuel from the old tank to the new tank? I am satisfied that I can. The Pump-Over [ 78 ] The transcript of the examination for discovery of Mr. Parsons on August 14, 2017 was included in the material filed on behalf of CST.

It shows that he was questioned with respect to the pump-over process: Q. … So, Warren Day came, replaced the – we’ll call it the old tank, - A. Drained the oil from the old tank, put it in that one, and took the tank away, and installed the new one. Q. Okay, so were you there when that happened? A. No, I was away. Q. Okay. So, you didn’t actually see what he did? A. No. [ 79 ] Although Mr. Parsons did not witness the pump-over procedure take place, he stated on discovery that he believed that the oil from the previous tank was pumped into the new tank: Q.

Okay, so you were telling us that the tank, when they replaced the tank that was in the basement, they put in this tank which is the tank that failed, Warren Day did the work and your understanding is that whatever oil was in the old tank in the basement, he pumped into the new tank? A. That’s right. Q. Okay, and what’s your basis for that? Did he tell you that or – A. I guess that’s the only way to get it back – so he wouldn’t have to dispose of it himself. [ 80 ] When Mr. Parsons was asked a third time whether he had actual knowledge that the pump-over occurred, he stated that he assumed it had occurred: Q.

Okay. Do you know if he actually pumped over fuel from the inside [tank] to the outside [tank]? A. I’m not 100 percent sure, but that’s what I assume he did. Q. Okay. Were you able to use the tank immediately after it was installed? A. No. I had to get it filled up with fuel. Q. Okay, and do you know when that fill-up happened? A. No.

Q. If we can show Mr. Parsons PA No. 3. Okay, at the very top of this, this is the new account that you – that was created as a result of this paperwork on December 3rd, 2009 and you can see that the account number on the contract is consistent with the account number on this document, PA No. 3. This number 6471271. A. Yeah. Q. Okay. So on December 3rd, this contract was crafted with this host number and then there was a delivery of fuel on December 3rd, but only 422 litres was delivered, okay. So, this is all happening in December of 2009.

So, is it possible that that fuel delivery was the first delivery to the tank? A. Probably. [ 81 ] The discovery evidence of Mr. Parsons has to be read in light of the Freill Report and Mr. Freill’s testimony. Mr. Freill’s evidence was that a new tank must be tested to ensure that it does not leak. This is normally done in one of two ways. One is by a pressure test being applied; there is no suggestion that such a test was conducted here. The other is by filling the tank at least two-thirds full. [ 82 ] Mr. Parsons testified that upon its installation, he had to fill the new tank.

The evidence establishes that he purchased 422 litres of fuel to do so. However, according to Mr. Freill, the new tank had a capacity of 909 litres and the fuel capacity whistle alarm is activated at 835 litres. So, for the tank to be cleared for use, it would have to be filled to at least two-thirds of 909 litres, that is 606 litres. But, commonly, tanks are simply filled to the 835 litre cut-off. If the tank was “filled” as was Mr. Parsons’ expectation, it would be necessary that there be 413 litres of fuel in the new tank before the new fuel was added (835 - 422 = 413).

But even if the tank was filled to two-thirds of the 909 litres, then it would still be necessary that there be 184 litres of fuel in the new tank before the new fuel was added (909 x .667 - 422 = 184).

There is no scenario by which the new tank could be “filled” by the addition of 422 litres of fuel without it containing a considerable amount of liquid from another source – even filling it to two-thirds of 835 litres would require that there be 135 litres of liquid in it (835 x .667 - 422 = 135). [ 83 ] Based upon the foregoing evidence I find that at the time the new tank was installed, at least some liquid from the old tank was pumped into it.

The Likely Cause of the Tank Failure [ 84 ] Having found that there was a pump-over of oil fuel from the old tank to the new tank, what is the likelihood that the contaminated fuel that caused its failure came from the old tank? [ 85 ] Although there was a suggestion that if fuel contaminated by salty water had been pumped over to the new tank, then it would have failed even sooner, it is noteworthy that the old tank had not failed. Dr.

Hancock’s evidence was not satisfactory on this point because although he stated that the old tank would have failed had it contained fuel contaminated by salty water, it is obvious that he did not know the state of the old tank or how close to failure it may have been. [ 86 ] Mr. Parsons, on discovery, testified that the old tank was replaced because Mr. Day told him it had expired.

Based upon the evidence, I am satisfied that this does not mean that a corrosion process in the old tank had not commenced, but only that it had not progressed to the point of failure. [ 87 ] Similarly, although both experts opined that the new tank would have been expected to fail even sooner if salty water had been introduced from the old tank, Mr. Freill provided a plausible explanation as to why it may have lasted longer than expected.

On cross- examination, he was not shaken on his opinion that the exterior paint on the tank cover could have held its fuel contents for a time despite the severity of the corrosion. [ 88 ] As a result of the pump-over having most likely occurred, Mr. Parsons has not established that CST via Tapper was the sole supplier of fuel to the new tank. Furthermore, although Mr. Parsons swore in his affidavit that on January 20, 2009, he purchased 262 litres of fuel oil for the old tank from Tapper and/or CST, he has not established that they were the sole suppliers of fuel to that old tank.

In fact, on discovery, he suggested that in 2009 fuel may have been supplied to the old tank by an entity by the name of Pay Less. Had that fuel been contaminated, then it could account for the salty water found in the new tank. [ 89 ] On a balance of probabilities, I find that the old tank was supplied with fuel from time to time by entities other than Tapper and CST. Therefore, the pumped-over fuel likely came, at least in part, from other suppliers. [ 90 ] This is important because I concur in the opinion of Mr.

Freill that contaminated fuel from the old tank, combined with the effect of condensation, is the most likely cause of the failure of the new tank. This finding is consistent with the evidence of Dr. Hancock who opined that the failure was caused by contaminated fuel being pumped into the new tank. [ 91 ] Dr. Hancock simply did not consider the possibility that a pump-over of fuel may have been the source of the contamination.

The probability that the source of the contamination was fuel from the old tank is heightened when one considers the evidence of Mr.Freill as to the stringent quality control measures that govern the suppliers of fuel. His evidence was that he is not aware of any tankfailure caused by contaminated fuel from a supplier such as CST. No evidence was adduced on behalf of Mr. Parsons as to the likelihoodof contaminated fuel being sourced from the Irving Oil facility; consequently, the evidence of Mr. Freill in this regard has not beencontradicted. [92] In

summary, the evidentiary record does not establish on a balance of probabilities that the corrosion of the new tank that led toits failure arose from fuel delivered by Tapper. Consequently, Mr. Parsons has not established that Tapper caused any damages sufferedby him. Therefore, the claim by Mr. Parsons against Tapper that it supplied contaminated fuel to him as alleged in paragraph 14(

b) of thethird amended statement of claim cannot succeed. Did Tapper owe a duty of care to Mr. Parsons to inspect the fuel oil or to obtain certification as to its quality? [93] Even if fuel supplied by Tapper to Mr. Parsons was contaminated and the contaminated fuel caused the tank to fail, Tapper canonly be liable to Mr. Parsons if it breached a duty of care owed to him. As indicated above, Mr. Parsons maintains Tapper owed him aduty of care to act reasonably in the delivery of the home heating fuel.

Furthermore, he claims that Tapper breached the standard of careby not obtaining a certificate of quality when it took delivery of the fuel from the Irving Oil storage facility. [94] In asserting that Tapper breached the standard of care owed to him, Mr. Parsons relies on a series of cases that involved fuelspills caused by factors other than contaminated fuel. Therefore, each of these cases is distinguishable on its facts from this case:

(1) In Park Place Centre Ltd. v. Ultramar Ltd., 2010 NSSC 39, a plaintiff sued both Ultramar and its delivery agent, G & SHaulage, for an oil spill that occurred on the plaintiff’s property as a result of oil continuing to be pumped after the whistle alarm failed. Ultramar was found liable in contract for breach of contract, and G & S Haulage was found to have owed a duty of care to the plaintiffand was found liable in negligence;

(2) In John’s Real Estate Ltd. v. Petrofina Canada Ltd. (1982), (NS CA), 57 N.S.R. (2d) 322,120 A.P.R. 322,(S.C.(A.D.)), following a trial, a fuel delivery driver was held liable for negligently putting fuel into a 100-gallon stove oil tank ratherthan the home heating fuel tank. The trial decision on negligence was not disputed at the Court of Appeal where the sole issues to bedecided were contributory negligence and damages;

(3) In Donleavy v. Ultramar Ltd., 2019 ONCA 687, the Ontario Court of Appeal upheld findings of negligence against both a fuelsupplier and deliverer following a domestic heating fuel spill. The fuel was pumped into a non-compliant indoor tank that was beingused outdoors. [95] In respect of contaminated fuel, Mr. Parsons relies upon C.W. McLeod Fisheries Ltd. v. Irving Oil Co. (1978), (NS SC), 34 N.S.R. (2d) 114, [1978] 3 A.C.W.S. 195 (S.C.(T.D.)), where Morrison J. of the Supreme Court of Nova Scotia foundliability against an oil supplier, both in negligence and pursuant to the Sale of Goods Act of that province.

At paragraph 80 he held: I find that the defendant, Irving Oil Limited was negligent in the storage and delivery of its oil products from the Lunenburg depot, inthat sufficient care was not taken to ensure that its oil supplies were not contaminated by water. The defendant Company was certainlyunder a duty to supply the plaintiffs in each case with oil that was of merchantable quality, oil that could be used in a satisfactory,efficient manner by the two motor vessels. The defendant in my opinion is liable to the plaintiffs in contract also, but I shall deal withtheir liability in tort.

Because of its negligence, the defendant company is liable to the plaintiffs for their damages suffered due to thatnegligence. [96] The facts considered in C.W. McLeod Fisheries arose 45 years ago and involved a fuel supplier that obtained its fuel from a shipthat held both ballast water and fuel in the same compartment. It is in that context that it was found that sufficient care was not taken toensure that its fuel supplies were not contaminated by water. Mr.

Freill’s evidence was that during the material dates in this matter,supply ships carrying the fuel at issue here had segregated ballast tanks which prevented ballast water from contaminating a fuelcompartment. This distinguishes this case from C.W. McLeod Fisheries. [97] Simon v. Imperial Oil Ltd., (NL SC), 1960 CarswellNfld 5, 45 M.P.R. 132 (S.C.), is another contaminationcase.

This Court found a duty of care and breach of the then applicable Sale of Goods Act by Imperial Oil Limited arising from the saleof fuel oil that was mistakenly mixed with gasoline, causing an explosion and damage to the plaintiff’s property. The claim against thedelivery agent, Jesso, was dismissed.

Although the actual cause of the mixing of the fuel oil with the gasoline was not determined, theCourt held that it occurred from the fault of Imperial Oil Limited. [98] In relation to Jesso (albeit relating to a claim under the Sale of Goods Act), Dunfield J. held at paragraphs 23 and 25: 23 Now, first as to the second defendant, Edward Jesso. He is sued under the Sale of Goods Act (R.S.

Nfld. 1952, c. 222), which isin the usual form, as having supplied goods unsuitable for their purpose, knowing what their purpose was. … 25 Now very likely Jesso did know Simon wanted the oil for his heating stoves; but he had nothing to do with the fitness of the oil,nor would Simon or any other customer for a moment suppose that he had. He sold a drum of "ESSO" stove oil, marked as such, markedas the product of Imperial Oil Limited. It was a well-known, absolutely familiar, standard unit under the "ESSO" brand.

The most thatJesso could be said to warrant was that it was just as he got it from Imperial Oil Limited, unopened, untampered with. All that eitherJesso or Simon knew about the contents, or supposed each other to know, was what was written on the end of the drum. "ESSO" stove

oil was its trade name and description. They both relied entirely on Imperial Oil Limited. To say that Jesso warranted its quality to Simon, or that Simon relied on Jesso for it, would be a complete fiction. … [ 99 ] Simon brings to the fore the issue of the duty of care owed to Mr. Parsons by Tapper.

To see why, let us go back to a basic statement of the law of negligence: a successful action in negligence requires the plaintiff to demonstrate that (1) the defendant owed him a duty of care; (2) the defendant’s behaviour breached the standard of care; (3) the plaintiff sustained damages; and (4) the damages were caused, in fact and in law, by the defendant’s breach. [ 100 ] In that light, let us look again at how the action against Tapper is framed. Mr. Parsons submits that

(1) Tapper as a distributor of fuel oil to the general public owed a duty of care to him as a person to whom the fuel was delivered;

(2) Tapper breached the standard of care by its failure to undertake any quality control measures in relation to the fuel delivered; (3) he sustained damages; and (4) the damages were caused by Tapper’s breach. [ 101 ] There is no doubt that a deliverer of fuel to a house for domestic heating purposes owes a duty of care to the person to whom the fuel is delivered to take reasonable steps to deliver it safely. That is, the standard of care is to deliver the fuel in a safe and non-negligent manner.

Examples of breaches of the standard of care we saw from the case law include: where fuel continued to be pumped notwithstanding that the whistle alarm had failed ( Park Place ); where the fuel was pumped into the wrong tank ( John’s Real Estate ); and where fuel was pumped into a non-compliant tank ( Donleavy ). [ 102 ] Furthermore, a supplier of fuel, such as CST in this case, may be found liable where the fuel supplied has been contaminated through its negligence ( C.W. McLeod Fisheries and Simon ).

The obligations and duties of the supplier, however, are not transferred to the deliverer who relies upon the quality of the fuel supplied ( Simon ). Mr. Freill’s expert evidence confirmed that an entity, such as Tapper, that receives fuel from a facility such as the Irving terminal in St. John’s can rely on the quality of the fuel received. [ 103 ] Mr. Parsons had no contract with Tapper who was a mere delivery agent on behalf of CST. That is, Mr. Parsons had a contract with CST by which CST was to supply him with home heating fuel oil. Tapper was engaged by CST to deliver the fuel to Mr. Parsons.

To fulfill its obligations, Tapper attended at the Irving Oil facility in St. John’s, took delivery of the fuel, and delivered it to Mr. Parsons. It had no further duty in respect of taking delivery of the fuel. [ 104 ] Mr. Parsons has not established that the standard of care owed to a domestic heating fuel customer by a deliverer of fuel obtained from a supplier subject to the CGSB standard extends to testing the fuel or obtaining any type of certification of its quality. Tapper could trust that the fuel provided to him by CST met those standards and was fit for use by Mr. Parsons.

If the fuel was contaminated when Tapper took delivery of it, he was not liable to Mr. Parsons for putting it into the new tank. In the words of Dunfield J. in Simon , adapted to the circumstances of this case, Tapper had nothing to do with the fitness of the fuel, nor should Mr. Parsons or any customer suppose for a moment that he had. On this basis, the claim against Tapper in negligence cannot succeed. disposition [ 105 ] The application by Tapper pursuant to Rule 17A is allowed. As a threshold issue, Tapper, as the applicant for a

summary trial, has satisfied me that: (

a) In the affidavit and other documentary evidence presented by all parties, there is an evidentiary basis for the defences to the claim; and (

b) It is appropriate to deal with the issue in this

summary manner. [ 106 ] Although there is a genuine issue for trial, I was able on the whole of the record to find the facts necessary to decide that Mr. Parsons cannot succeed in his negligence claim against Tapper. Furthermore, it would not be unjust to decide the issues summarily. [ 107 ] Even if the facts supported a finding that contaminated fuel supplied by Tapper to the new tank caused its failure, which they do not, then Mr. Parsons has not established that Tapper was under a duty of care to obtain certification for the fuel that it delivered. [ 108 ] The claim by Mr. Parsons in paragraph 14(

b) of the third amended statement of claim that Tapper supplied contaminated fuel to the new tank has not been proven on a balance of probabilities and must be dismissed. Because Mr. Parsons has conceded that he cannot succeed in his claim that Tapper contaminated the fuel it delivered to him (paragraph 14(

a) of the third amended statement of claim) or his claim against Tapper under the Sale of Goods Act (paragraph 15 of the third amended statement of claim), those claims, too, are dismissed. [ 109 ] Tapper shall have its costs against Mr. Parsons on Column 3 of the Scale of Costs. [ 110 ] In his memorandum of fact and law, Mr. Parsons sought

summary judgment against CST on this application by Tapper. CST necessarily responded in full, including by commissioning the Freill Report. Therefore, although CST did not join in the application as such, and there is no ruling in its favour, it shall also have its costs against Mr. Parsons on Column 3 of the Scale of Costs. [ 111 ] Counsel appeared at the hearing on behalf of the second defendant but did not actively participate in the hearing or provide any material for my consideration. I would describe the presence of counsel for the second defendant as being akin to conducting a watching brief. Therefore, the second

defendant shall bear its own costs. _____________________________ Robert P. Stack Justice