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Ontario Legal Report: Thompson Fuels Ordered To Pay Costs

Article by Paula LombardiSiskinds LLP

The case of Gendron v. Thompson Fuels, related to a home furnace oil tank that developed a leak in December 2008. The leak caused damage to the Gendron’s home and the surrounding environment, including nearby Sturgeon Lake. The City of Kawartha Lakes cleaned up the Lake.

On July 17, 2017 the court released its decision on this matter, (2017 ONSC 4009) granting judgement in favour of Gendron against Thompson Fuels. The court appropriated 60% liability to Gendron and 40% to Thompson Fuels. The parties agreed that, based on the court’s findings, Gendron’s total damages were $2,161,570, and Thompson Fuels’ portion of those costs equalled $901,747 ($864,628 plus $37,119 interest). In that decision the court found that the two remaining defendants, the Technical Standards and Safety Authority (“TSSA”) and Les Reservoirs D’Acier De Granby Inc. (“Granby”) were not liable.

Closeup of an oil slick in water with fall colors in the grass on the shore

The parties were unable to agree on costs and requested that submissions on costs be deferred until the decision on the post-trial motions was released. On March 29, 2018 the Court ordered Thompson Fuels to pay Gendron’s costs on a partial indemnity basis in the amount of $473,000.00 (2018 ONSC 2079). In arriving at this amount, the Court considered the Gendron’s contributory negligence, the costs of various post-trial motions brought by the parties, the reasonableness of Gendron’s bill of costs, and the fact that neither party had beat its offer to settle.

The Court then awarded $150,000 in costs to TSSA as against Gendron and Thompson Fuels, who had cross-claimed against TSSA. The Court further ordered Gendron and Thompson Fuels to contribute $140,000 and $10,000, respectively. The Court also ordered Gendron and Thompson Fuels to pay equal shares of TSSA’s costs of $7,500.00 for the post-trial motions. In deciding to award only partial indemnity costs, the Court found that given TSSA’s limited involvement at trial, it did not require two lawyers to attend at trial. The Court also noted that even though Gendron’s action in negligence against TSSA had failed, the trial Court had found that the TSSA had not been “a model of efficiency or clarity” in its dealings with Gendron.

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This article was first published on the Siskinds Law Firm web site.

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About the author

Paula Lombardi is a partner of Siskinds LLP,  and practices in the areas of environmental, municipal, regulatory and administrative law.  Prior to joining Siskinds, Paula worked as an associate at a Bay Street law firm where her practice focused on occupational health and safety, environmental and regulatory matters.

Paula recently spent two years as in-house counsel for a major privately owned US corporation, whose owner is on the Forbes 500 list, and was responsible for all Canadian legal and business issues relating to the import and export of goods, transportation of hazardous materials, remediation of contaminated sites, construction of large infrastructure projects, regulatory compliance, NAFTA matters, and preparation of environmental assessments in the US and Canada.

Paula has a great deal of experience in: providing due diligence advice; dealing with contamination issues; handling of organic chemicals and hazardous wastes; obtaining environmental approvals; obtaining planning and development approvals; providing advice to municipalities; defending environmental prosecutions; and assisting companies with environmental and regulatory compliance. Paula has appeared before numerous administrative tribunals.