Citation: G & S Haulage Ltd. v. Park Place Centre Ltd., 2011 NSCA 29
Date: 20110324
Docket: CA 328260
Registry: Halifax
Between:
G & S Haulage Limited
Appellant
v.
Park Place Centre Limited and Ultramar Ltd.
Respondents
Judges: MacDonald, C.J.N.S., Hamilton and Beveridge, JJ.A.
Appeal Heard: November 22, 2011, in Halifax, Nova Scotia
Held: Appeal and cross-appeal dismissed with costs payable by the appellant to the respondent, Park Place Centre Limited, in the amount of $7,500, per reasons for judgment of Beveridge, J.A., MacDonald, C.J.N.S. and Hamilton, J.A. concurring.
Counsel: Nancy I. Murray, Q.C., Sara Scott and Tipper McEwan (Articled Clerk), for the appellant
George MacDonald, Q.C. and Jane O’Neill, for the respondent, Park Place Centre Limited
C. Scott Sterns and Tammy Manning, for the respondent, Ultramar Ltd.
Reasons for judgment:
INTRODUCTION
[1] G & S Haulage Ltd. is a small operation. It is owned and operated by its two employees, Lloyd Greek, and his wife, Joyce. It was under contract to deliver heating oil to customers of Ultramar Ltd. Park Place Centre Ltd. was a customer of Ultramar.
[2] Mr. & Mrs. Greek delivered heating oil to Park Place on hundreds of occasions without mishap or complaint until one day something went very wrong. Too much oil was delivered. The tanks, located in the basement, overflowed. The oil was cleaned up, but it had leaked below the foundation of the building contaminating the soil and creating the risk of migration of the oil. Park Place incurred substantial cost to clean the interior of the building and to depurate the contaminated soil.
[3] Park Place sued Ultramar and G & S to recover damages caused by the oil spill. Its claim was based both on breach of contract and negligence. Ultramar and G & S defended and crossclaimed against each other.
[4] Justice Richard Coughlan was the trial judge. His reasons for judgment are reported at 2010 NSSC 39. He found G & S negligent, and Ultramar to have breached its contract with Park Place and also vicariously liable for the negligence of G & S. However, G & S was ordered to indemnify Ultramar for any amounts it may be required to pay to Park Place. The trial judge also found Park Place to be contributorily negligent and apportioned responsibility for 30% of the cost to clean up the contaminated soil.
[5] G & S appealed claiming the trial judge erred in finding it to be negligent. Park Place cross-appealed arguing it should not have been found to be contributorily negligent. Ultramar participated in the appeal as a named respondent, but supported the position of the appellant G & S and opposed the cross-appeal of Park Place.
[6] For the reasons that follow, I am not persuaded that the trial judge committed an error that would permit this Court to intervene, and accordingly would dismiss both the appeal and cross-appeal.
FACTS
[7] Before setting out the arguments advanced by the parties, a more detailed description of the evidence and facts found by the trial judge is in order.
[8] Park Place Centre Ltd. is a subsidiary of the Armour Group Ltd. It owns and operates a complex, Park Place I in Dartmouth, Nova Scotia. The complex is made up of a Ramada Hotel and an office building.
[9] Park Place I was constructed by Armour Construction Ltd., another subsidiary of the Armour Group Ltd. The engineer in charge of the construction was Gordon Parsons, at that time, an employee of Armour Construction. He testified that Armour Construction hired engineers, architects and sub-contractors to carry out the work. Armour Construction relied on the design team and building inspectors to ensure all relevant building codes were met.
[10] The heating system was designed to run on oil. The boilers and oil tanks were located in separate rooms. There were two 10,000L oil tanks in what was sometimes called the tank room – but also referred to as the “containment room”. The only other thing located in this room was a much smaller 100 gallon tank used to store and supply diesel to the emergency generator.
[11] Each of the three tanks had its own fill pipe located outside, close to the loading dock. The three tanks were vented to the exterior by a common pipe, terminating next to the fill pipes by the loading dock. Important to the appellant’s argument on appeal, the two 10,000 L tanks were connected to each other at the bottom. The claimed significance of this detail will be set out later. The two large tanks were also equipped with emergency vents. Someone had stacked bricks on top of these vents.
[12] None of the parties sought to qualify any witness to give expert or opinion evidence at trial. The lay witnesses gave somewhat conflicting descriptions of the precise location of what is known as a vent alarm. It is a simple device. If it, and the oil tank are in proper condition, overfilling of an oil tank cannot happen, absent human error. A whistle is either suspended inside a tank or is located in the vent tube just above the tank. The whistle sounds from air being expelled from the tank when oil is being pumped into the tank. When the tank is full, the whistle stops thereby signalling the delivery person to stop pumping oil.
[13] Mr. Greek has been in the oil delivery business for close to 40 years. He and his wife are fully trained and certified to safely deliver oil, and have vast unblemished experience in doing so. Prior to May 25, 2006 Mr. Greek had made over 400 oil deliveries to Park Place I. The whistles in the tanks always worked and he never had a problem hearing them. He would usually start filling the right tank and would continue until the whistle stopped blowing and then go to the next tank. Mr. Greek was emphatic it would be total neglect to walk away while a tank was being filled.
[14] There was a fair amount of evidence at trial, and consequent finger-pointing, over the significance of the decision by Park Place in the fall of 2005 to convert its boilers to be able to run on natural gas and oil. The trial judge disposed of this point concisely:
[41] Approximately the fall of 2005, Park Place decided to convert Park Place I's boilers to use either oil or natural gas. Mr. Parsons discussed the possibility of the conversion with Ultramar's manager. Around the time of the oil spill, Park Place converted the boilers to use either oil or natural gas. Mr. Parsons did not tell either Ultramar or G&S of the conversion. Glenn Goulden told Mr. Greek Park Place I was converting to natural gas. Mr. Parsons did not know if oil was being used at Park Place I in May, 2006. If Park Place I was using natural gas and the tanks were full of oil, when additional oil was delivered the whistle would not sound and oil should not be delivered. I find the conversion of the boilers to use oil or natural gas was not a cause of the oil spill on May 25, 2006.
[15] None of the parties take any direct issue with this conclusion by the trial judge.
[16] On May 25, 2006 Ultramar requested G & S to deliver oil to Park Place I. Mr. & Mrs. Greek complied. They both gave similar evidence. Mrs. Greek was driving. She parked the truck and Mr. Greek started delivering oil. Delivery was stopped because the oil truck had blocked a parked car. The owner of the car wanted to leave. The oil truck was moved, and then returned to its prior location to permit delivery to resume. Oil delivery was interrupted again when one of the two compartments on the truck began to run dry, necessitating Mr. Greek to stop pumping to return to the truck and switch compartments. He resumed pumping.
[17] There are two different versions on how the delivery of oil was finally stopped. The difference is not just between the Greeks and witnesses from Park Place but also as between the witnesses from Park Place. Both Mr. & Mrs. Greek testified that Mr. Greek was at the filler pipe pumping oil when an employee from Park Place ran outside and alerted him to stop pumping. Mr. Greek says he heard the whistle sounding the whole time he was pumping oil.
[18] Glen Goulden was the operations manager for Park Place for approximately seven years. He was in his office when Joe Doyle, a maintenance employee, told him he noticed a strong smell of oil. They went to the boiler room. They could not see any oil, but could smell it. When they opened the door to the tank room there was oil coming out the top of the tanks around the bricks. Goulden estimated there was three or four inches of oil on the floor. They ran outside and yelled to Lloyd Greek to stop delivering oil. The nozzle was still in the pipe with Mr. Greek by it, presumably pumping oil.
[19] On the other hand, Douglas Peters, conference services manager, testified that he was standing in the doorway of the chef’s office when he noticed the smell of oil. He said he went outside to the loading dock area. There he described the smell of oil as overwhelming. He saw the back of two heads in the cab of the truck. He yelled, and when he did, a man jumped out of the driver’s door of the oil truck, uttered an expletive, went to the fill pipe and pulled the hose out of the pipe. Peters then returned inside and tried to call the maintenance department. Unsuccessful, he went back outside. He says he then saw Glen Goulden, another maintenance employee, and a gentleman (Mr. Greek) coming up the stairs to the left of the loading dock. Knowing maintenance was involved, he left.
[20] Government officials, the Fire Department, insurers and clean up specialists were contacted about the oil spill. The oil in the tank room was removed by vacuuming. Environmental Solutions Ltd. was hired to carry out an assessment of the extent of the oil spill. Specifically, was it contained to the tank room. Charles Burgher was the Atlantic Regional Manager for Environmental Solutions. He said he observed the expansion joint between the floor and the wall. It was filled with what seemed to be porous material. Core holes were dug. They revealed the presence of oil in the soil and groundwater beneath the tank room.
[21] The cost to clean the tank room was $40,028.66. The cost to clean up the oil that had leaked out of the tank room was $268,982.77. The trial judge found Park Place to be contributorily negligent on the basis that it should have reasonably foreseen that if an oil leak occurred in the tank room, and if the room was not liquid tight, oil could escape thereby causing damage. He apportioned liability for the cost of the clean up outside the tank room 70% to G & S and Ultramar and 30% to Park Place.
ISSUES
[22] G & S set out numerous grounds of appeal in its Notice of Appeal. Park Place had but two. In light of their respective facta and oral submissions, the issues can be consolidated as:
1. Did the trial judge err in finding G & S breached its standard of care and was therefore negligent in how oil was delivered on May 25, 2006?
2. Did the trial judge err in failing to articulate and apply the correct burden of proof?
3. Did the trial judge err in how he dealt with the relevant provisions of the National Building Code?
4. Did the trial judge err in finding Park Place contributorily negligent in the absence of evidence to establish the appropriate standard of care?
[23] The applicable standard of review will be addressed within my discussion of the issues raised by the parties.
DISCUSSION
Breach of Standard of Care - Finding of Negligence
[24] The appellant recognizes that a conclusion of negligence is a question of mixed fact and law; as such, absent an extricable question of law, an appeal court can only intervene if it is satisfied the trial judge made a palpable and overriding error (see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, paras. 25, 26 and 36). The phrase “palpable and overriding error” subsumes important findings that are unreasonable or unsupported by the evidence (see H. L. v. Canada (Attorney General), 2005 SCC 25).
[25] The appellant does not suggest an extricable error in law. Instead it argues the trial judge was clearly wrong in his analysis and his errors influenced the result.
[26] The essential submission by the appellant is that the trial judge erred in not accepting the evidence of Mr. Greek that he never left the fill pipe and the whistle was sounding throughout the delivery of oil. It says the only evidence Mr. Greek was not at the fill pipe at all times came from Mr. Peters. The appellant says the evidence of Peters does not withstand scrutiny and must be rejected; and once it is rejected, then the evidence of Mr. Greek that he was at the fill pipe must be accepted.
[27] In support of this submission the appellant points to many problems with the reliability and credibility of the evidence of Peters that put Mr. Greek in the cab of the delivery truck during delivery and suggests the whistle could have been sounding, despite the first tank being full, by virtue of air being displaced from the second tank.
[28] With respect, the submissions of the appellant are a request that this Court retry the case based on a transcript, substituting our view of the value of the evidence and what inferences should or should not have been drawn. This is not our role. (See McPhee v. Canadian Union of Public Employees, 2008 NSCA 104.)
[29] That is not to say there were no problems with the evidence given by Peters. G & S Haulage and Ultramar launched a vigorous attack on the reliability, credibility, and even the admissibility of his evidence.
[30] The challenge to admissibility was rooted in Nova Scotia Civil Procedure Rules 51.03 (1) and 18.19(1). They provide:
51.03 (1) A judge who presides at a trial must exclude evidence of the following kinds, unless the party offering the evidence satisfies the judge it would be unjust to exclude it:
(a) evidence for which notice is required, but for which notice is not given;
(b) evidence required to be disclosed under, but not disclosed in accordance with, Part 5 ‑ Disclosure and Discovery;
(c) evidence offered by a party who fails to give the evidence, or to give information leading to the evidence, in response to a direct question asked at discovery or by interrogatory, such as by answering that the party does not know the answer and failing to make disclosure when the answer becomes known or by objecting to the question on the ground of relevancy;
(d) expert opinion not disclosed under Rule 55 ‑ Expert Opinion.
18.19 (1) A party who becomes aware that they, or their employee or officer, gave an erroneous or incomplete answer at discovery must immediately notify each other party of the error or incompleteness and, unless the parties agree or a judge orders otherwise, provide the correct and complete information in a written statement signed by the person who gave the answer.
[31] The trial was held over five days in July and September, 2009. Mr. Peters gave his evidence on July 7, 2009. He testified that he prepared a report within a week of May 25, 2006 at the request of the Hotel General Manager, gave it to him, but had not seen it since. Counsel for Park Place, during the course of the litigation, identified Glen Gould and Joseph Doyle as the witnesses who first discovered the excess oil delivery and confronted Mr. Greek to stop any further delivery.
[32] Gordon Parsons, the Chief Operating Officer in charge of Park Place, testified he knew prior to discoveries that Peters was supposed to have witnessed something about the oil spill. He said he advised counsel. Yet he sat through the subsequent examinations for discovery of Mr. Gould and others. Nothing was said to alert the defendants about Mr. Peters.
[33] The trial judge dismissed the motion to exclude Peters’ evidence, principally on the basis that since the trial had been adjourned from July 9 to September 29, 2009 the defendants had had sufficient time to prepare to deal with his evidence. In addition, the trial judge said the evidence by Peters was highly relevant. The appellant has not challenged this ruling.
[34] As mentioned, there were a number of problems with Mr. Peters’ evidence. Not one witness identified him as being anywhere near the loading dock on May 25, 2006. No one could explain what was supposed to have happened to an internal report that details such important evidence, nor why the discovery evidence of representatives of Park Place was not corrected. It did not seem to make much sense for Peters to encounter an overwhelming smell of oil when he went outside on the loading dock when the oil being spilled was inside the building. No one else referred to such a smell outside.
[35] One of the principal attacks on his evidence came in the form of testimony from Mr. & Mrs. Greek, armed with photographs demonstrating the impossibility of what Peters claimed to have seen.
[36] To understand the significance of the evidence, it is useful to recall Peters had testified that when he came out on the loading dock he could see two heads through the back window of the oil delivery truck. He yelled, and that is when a man leapt out of the driver’s side and rushed to the fill pipe. The evidence the defendants called tended to demonstrate that, given the location of the truck in relation to the loading dock, and its physical characteristics, the claim by Peters to have seen two heads in the truck through the rear cab window was beyond the laws of physics.
[37] The problem with the submission of the appellant is that the trial judge was aware of the significance of the evidence called by the defendants. Mr. Peters’ evidence at trial, when he was challenged in cross-examination on how he could see inside the back window of the truck, was that it was his “recollection”.
[38] The trial judge said this about the claim by Peters:
[32] Mr. Peters’ recollection was that he saw the back of two heads in the truck through the truck’s rear window. The oil truck did have a back window; however, the distance from the back of the truck to the tank was four and one‑quarter inches. The tank was taller than the top of the window in the back of the truck. The truck was parked parallel to the loading dock. Mr. Goulden testified you were able to see in the oil truck from the loading dock. Mr. Peters may have seen heads from the loading dock, either through the window in the rear of the cab or the side window of the truck. The part of Mr. Peters’ recollection which would stick in his mind is seeing two people in the truck, rather than the window through which he observed the people. I accept Mr. Peters’ evidence that he observed two people in the oil delivery truck during the oil delivery on May 25, 2006.
[39] It is trite law that a judge can accept some all or none of the evidence given by a witness. The trial judge implicitly accepted that it was impossible for Mr. Peters to have seen two heads through the rear window of the cab. The appellant does not suggest that the trial judge was wrong in his reference to the evidence of Mr. Goulden that it is possible to see in the oil truck from the loading dock. In my opinion, the trial judge committed no reversible error when he observed that the important part of what Peters recalled seeing is two people in the truck, and not through which window he was able to make that observation.
[40] It is also important not to parse evidence into independent compartments. Findings of fact or mixed fact and law are not made in a vacuum, but are based on all of the evidence. An examination of the trial judge’s reasons make it plain that the trial judge’s acceptance of the evidence of Peters was based on all of the evidence. Let me explain.
[41] The trial judge was faced with two opposing versions as to what happened. Park Place insisted that the tanks cannot overflow with the vent whistle still sounding. The tanks overflowed. Mr. Greek, as related by Peters, was away from the fill pipe. G & S and Ultramar insisted Mr. Greek would never leave the fill pipe. He had not done so, and the vent whistle sounded throughout the delivery of oil on May 25, 2006. This was possible due to the interconnection between the two tanks allowing air to be displaced from the second tank despite the first tank being full, and overflowing oil.
[42] Mr. Greek acknowledged that the vent whistles always worked on the four hundred plus times he had delivered oil prior to May 25, 2006. Mr. Greek returned to Park Place on June 22, 2006 to carry out a test delivery of oil. He testified that he followed the same procedure. He filled the right hand fill pipe. The vent whistle sounded. When it stopped sounding, he then switched to filling the other tank. The vent whistle again sounded until the second tank was full. There was no oil spill. Although not detailed, there was certainly some evidence that the tank setup was the same on June 22 as it had been on May 25, 2006. The trial judge found as a fact that the whistle stops sounding when each tank is full, and they were working properly before and after the oil delivery of May 25, 2006.
[43] This led the trial judge to reason as follows:
[30] As Mr. Greek testified, the whistle is important. He does not fill a tank without a whistle. It is the lifeline to the tanks being filled. He testified when the whistle stops ‑ he stops filling the tank. Having found the whistle was properly working, I do not accept the whistle was sounding during all of the delivery of oil on May 25, 2006. Enough oil escaped from the tank to allow Joe Doyle to smell the oil, go to Mr. Goulden’s office to report he smelled a strong oil smell, then for Messrs. Goulden and Doyle to go to the boiler room, then the tank room where Mr. Goulden saw what he thought was three to four inches of oil on the floor. Then they went to the loading dock area to stop the delivery of oil. Mr. Greek did not notice the whistle had stopped sounding either because he was distracted or out of the area of the fill pipes.
[31] It is unlikely Mr. Greek would have been standing at the fill pipe delivering oil without a whistle blowing for the period of time to allow sufficient oil to escape from the oil tanks and for Joe Doyle and Glenn Goulden to do all they did before notifying Mr. Greek of the spill.
[44] In other words, there were articuable reasons for the trial judge to have accepted that Mr. Greek was away from the fill pipe just as Peters said he was. If he was by the fill pipe he would have noticed the whistle had stopped sounding. It would be unlikely that he simply did not observe the cessation. The whistle was, as Mr. Greek testified, his lifeline. It seemed improbable to the trial judge that he would have been at the fill pipe for as long as it took Park Place employees inside to investigate the smell of oil and come outside, without realizing the whistle had stopped sounding.
[45] In support of its argument the trial judge committed palpable and overriding error, the appellant also challenges the finding by the trial judge that if the tank was full, the vent whistle stopped sounding.
[46] The theory of the appellant and Ultramar was that the design of the tanks permitted oil levels as between the two 10,000L tanks to equalize due to being interconnected at or near the bottom of the tanks. The first tank could be filled but because oil was being transferred through the bottom connection to the second tank, air would be displaced from it, thereby causing the vent whistle to sound through the common vent pipe. There is no direct evidence that this is what did or even could occur. While this theory has a certain amount of superficial logic, no evidence was called to substantiate it; moreover, it is inconsistent with other uncontradicted evidence at trial.
[47] The interconnection theory was fully argued to the trial judge. Obviously he did not accept it. I cannot agree that the trial judge committed an error, let alone a palpable and overriding one, in declining to accept this theory and draw the requested inference that the vent whistle could still sound despite the first tank being full. The theory is contradicted by the fact that the tanks were filled, one by one, by Mr. Greek over four hundred times with the vent whistle fulfilling its proper role each time. This also occurred on June 22, 2006 when Mr. Greek did a test fill. The evidence from Park Place was that on June 22 the system was the same as it was on May 25, 2006.
[48] The interconnection theory is also contradicted by the evidence that oil was overflowing out of the tops of all three tanks on May 25, 2006. The appellant had no explanation at trial as to how the vent whistle could still be sounding. Ms. Murray, counsel for the appellant, acknowledged at trial that if a tank is full, it is scientifically impossible for the whistle to sound. When pressed by the trial judge about how important this issue was, she said about why the whistle did not shut off:
Why it didn't shut off, My Lord? That's the question. And that's the one to which there is nothing in the evidence before you that I have been, bearing in mind I wasn't here all along but I sure haven't seen it. Why didn't it shut off properly. And, My Lord, frankly, on behalf of this defendant, I can't answer that question, but that's the question. That's the question. I don't know.
[49] I am not convinced the trial judge made a palpable and overriding error in his analysis, findings or result, and consequently I would not give effect to this ground of appeal.
Burden of Proof
[50] No one disputes that a trial judge must correctly articulate and apply the correct burden of proof. Failure to do so is an error of law and is reviewable on the standard of correctness (see Davison v. Nova Scotia Government and General Employees Union, 2005 NSCA 51). G & S and Ultramar make the same submission on this issue: the trial judge erred in law by not requiring Park Place to prove its claim of negligence by a preponderance of credible evidence.
[51] The appellant does not point to any misstatement of legal principle or wrong characterization of a legal standard. Rather it argues that: a review of the evidence at trial “indicates” there was no credible evidence Mr. Greek was anywhere but at the fill pipe; no credible evidence the whistle was not sounding when the overfill occurred; and the bare fact of an overfill does not establish negligence by G & S. The appellant’s factum asserts:
88. The Appellant submits that the evidence at trial does not support a finding of negligence against G&S. To the contrary, the evidence supports a finding that G&S was not negligent. There is no credible evidence that Lloyd Greek breached the required standard of care.
[52] With respect, the submission is, in essence, a restatement of its contention the trial judge erred in finding negligence, but now dressed up as an error of law, reviewable on the standard of correctness, rather than as a palpable and overriding error. In my view, the argument is a second attempt to have this Court retry the case, substituting our view of the credibility of trial evidence and what inferences should or should not have been drawn. Having previously found no palpable and overriding error in the findings of fact or mixed law and fact by the trial judge, this ground is without merit.
The National Building Code and Contributory Negligence
[53] The appellant and Ultramar contend they should not be held liable for any of the damages caused by the oil spill since it was not forseeable to Mr. Greek that the tanks were not sealed. They say the requirements of the National Building Code (NBC) in effect at the time Park Place was constructed required such tanks to be sealed and vented only to the outside. In the alternative, they say Park Place ought to be responsible for all of the remediation costs associated with the oil that leaked out of the tank room as these damages were too remote from the actions of G & S and caused solely by the failure of Park Place to comply with the NBC and to use reasonable care.
[54] Park Place counters that the requirements of the NBC were not even entered as evidence at trial, and the position now taken on appeal amount to new arguments. In any event, it says it is only the owner of the building. Its parent company, through other related companies, relied on professionals to design and build in accordance with the NBC. The plans were approved, as was the building, by the appropriate municipal authority.
[55] Furthermore, Park Place asserts the trial judge erred in law in finding, without expert evidence, that the NBC required the tank room to be liquid tight. In the alternative by its interpretation of the NBC, the tanks and the tank room were in compliance. Coupled with no evidence about the standard of care expected of a reasonable hotel owner in the circumstances, this amounts to an error of law requiring the finding of contributory negligence to be overturned.
[56] Given the interplay between these issues, it is convenient to address them collectively.
[57] With respect, most of the arguments raised by the appellant and Ultramar are not new arguments. They were raised in their submissions before and at trial. The trial judge concluded the National Building Code of Canada 1985 was adopted as the Provincial Building Code for Nova Scotia. This included the Canadian Standards Association B139 - “Installation Code for Oil Burning Equipment”. The trial judge dealt with the arguments about the role of compliance with the NBC as follows:
[70] The tanks in Park Place 1 were 2,000 gallon tanks and therefore had to meet the specifications set out in Standard 6.5, "Supply Tanks, Installed, Enclosed, Inside Buildings". The tanks did not meet the requirements of Standard B139 as they were bottom connected, not connected through the top of the tank as required by Standard 6.5.4 as Mr. Freill testified. I accept the piping connecting the tanks was about a foot off the bottom of the tank. Nothing in the specifications or tender documents for the construction of Park Place I indicate the tank room was to be liquid tight. Although Standard 6.5.6(b) required the walls be bonded to the floor, I find the fuel oil storage tanks were not installed in accordance with the Building Code provisions, specifically CSA B139, in force at the time of construction. There is no evidence to show the non‑compliance with the Building Code was the cause of the oil escaping from the fuel tank; however, the separation between the walls and the floor in the tank room did contribute to the damage suffered by Park Place because of the oil spill.
[58] With respect to the alleged failure to properly lead evidence to establish the existence and content of the NBC, Park Place does not specify how it was an error for the trial judge to take notice of the NBC requirements in place when Park Place I was constructed. The provisions of the National Building Code of Canada 1985 were adopted by regulation (the Provincial Building Code Regulation, N.S. Reg. 45/87). This regulation was filed with the Registrar on March 13, 1987 and published in the Royal Gazette on March 26, 1987. By virtue of the Regulations Act, R.S.N.S. 1989, c. 393, s. 9(2), judicial notice must be taken of any regulation published pursuant to that Act.
[59] Park Place does not suggest that the NBC requirements referred to by the trial judge, and in this Court, are somehow wrong or incomplete. I would not accede to this argument.
[60] As to the need to have expert evidence in order for a trial judge to interpret and rely on the NBC, I know of no authority that stands for that broad proposition. The authorities cited by the respondent Park Place do not, in my view, support this sweeping postulate. In Shelter Industries Inc. v. Great Northwest Contracting Ltd., 2001 BCCA 609 the defendants resisted payment to a contractor on a variety of bases. One was the allegation that the foundation was not built to the requirements of the British Columbia Building Code. Expert evidence was called by the respondents at trial to the effect that the foundation did not meet the Building Code requirements. The appellant complained on appeal that the expert relied on the wrong part of the Code. After referring to the exchange between the expert witness and counsel for the appellant at trial, Southin J.A., for the Court, observed:
20 In view of that exchange, I think it is now too late for the plaintiff to ask this Court to find that the witness was looking at the wrong part of the Code. Although it is so, as Mr. Candido noted, that the Building Code is a series of regulations and thus is a matter for a judge to construe, I do not think it is possible for the Code to be understood by a judge without expert assistance as to building practices and so forth. Therefore, I would not interfere with the learned judge's finding that this foundation did not meet the requirements of the Code, and it is not disputed that the contract between the parties required adherence to the Code.
[61] The only other authority relied upon by the respondent Park Place is Sunnybrae Springbook Farms Inc. v. Trent Hills (Municipality), 2010 ONSC 1123. This was a case about whether the defendants had acquired easements by prescription. The plaintiff complained that the roadway used by the defendants did not comply with the relevant zoning by-law nor the requirements of the Ontario Building Code mandating standards for access by fire vehicles to buildings other than cottages. Lauwers J., after referring to the provisions of the Code, refused to rely on the possible failure of the some of the defendants to comply with the Code, or of the municipality to enforce it, to deny the right of the defendants to acquire a prescriptive easement. In the course of doing so, he wrote:
72 The interpretation and local application of the Building Code is uniquely confided by the statutory regime in the municipality's chief building official. This is an area where expert evidence is normally required and the parties have provided me with none, nor has the chief building official of the municipality filed an affidavit or been deposed. Issues ordinarily arise between a property owner who is seeking a building permit and the chief building official who is refusing one; there are many cases where courts have granted or refused orders for mandamus requiring the issuance of a building permit. The regulatory regime is quite sophisticated. Mr. Fienberg has provided me with no cases in which a third party has successfully challenged the issuance of a building permit. These are not issues in which a third party like the plaintiff would normally have an interest, unless the property owner is committing a separately actionable tort against the third party such as nuisance, in which case the third party's remedy is a civil suit for the tort. I therefore reach the same conclusion as I did with respect to the possible breach of the Zoning By‑law with necessary modifications: the possible failure of the some of the defendants to comply with the Building Code or the municipality to enforce it is not of such a serious nature that the defendants should be disentitled from obtaining the protections of the common law and statutory law concerning prescriptive easements; there is no basis in principle for this court to add a legal penalty in the manner proposed by the plaintiff where the law provides for alternate remedies.
[62] I take from these authorities that a Building Code is a regulation. As such, it is for the Court to properly interpret it, and determine if a building is or is not in compliance with its dictates. Since it is a technical, complex area, expert evidence about origin and history of the requirements, consequences of a particular interpretation and building practices may very well assist the Court, but is not a fundamental prerequisite without which a judge is somehow powerless to interpret and apply the law.
[63] If the respondent wished to call expert evidence to support its view that all aspects of the oil tanks and tank room complied with the NBC it could have done so. The failure of the parties to adduce expert evidence does not preclude a trial judge, or this Court, from interpreting and applying the law in Nova Scotia. I would not give effect to this argument.
[64] There are two aspects of the CSA Standard B139 that had relevance to the events of May 25, 2006. They were: the requirements for the tanks and fittings that could be used when the tanks were located inside a building; and the requirements for a room where the tanks exceeded a specified size.
[65] The relevant portions of CSA B139 (1976) are:
6.1 Design, Construction and Application
6.1.1 Materials
6.1.1.1 Tanks shall be built of steel or other acceptable material.
6.1.1.2 Tanks shall be designed to specifications recognized as good engineering design for the material used, and shall be approved by the authority administering this Code.
6.1.2 Construction
6.1.2.1 Approved standards of design and construction shall include:
(a) U.L.C. Standards:
(i) S601, Aboveground Shop Fabricated Steel Tanks for Flammable and Combustible Liquids;
(ii) S602, Inside Tanks for Oil Burners;
(iii) S603, Steel Underground Tanks for Flammable and Combustible Liquids; or
(iv) S603.1 Protected Steel Undergound Tanks for Flammable and Combustible Liquids;
(b) API Standard:
650 Welded Steel Tanks for Oil Storage;
(c) C.T.C. or US D.O.T. Standard, Drum Shipping Containers not larger than 50 gallons;
(d) Rules for Construction of Pressure Vessels, Section VIII of the ASME Boiler and Pressure Vessel Code.
6.1.2.2 Required Openings: Openings shall be provided for filling, venting, supplying, and gauging.
6.1.2.3 Unused Openings: Any unused openings in a tank shall be closed vapour and liquid tight.
. . .
6.4 Supply Tanks, Installed, Unenclosed Inside Buildings
6.4.3 In the lowest storey, cellar, or basement of any building, the capacity permitted shall be in accordance with the following:
(a) The capacity of any one tank or combination of bottom-connected tanks shall not exceed 500 gallons;
(b) The total capacity of unenclosed tanks shall not exceed 1,000 gallons;
(c) When the total capacity of tanks connected to one supply line exceed 500 gallons, all connections for the transfer of oil to and from the consuming appliance shall be at the top of the tanks and by pump only and means shall be provided to prevent siphoning except where oil Types No. 5 and 6 are used.
. . .
6.5 Supply Tanks Installed, Enclosed, Inside Buildings
6.5.1 Tanks with a total capacity in excess of that permitted by Clause 6.4.3 shall be enclosed as specified in Clause 6.5.6 when within a building, tested in accordance with Clause 6.3.12 and located in accordance with Clause 6.4.2.
6.5.2 A tank to be installed enclosed inside a building shall meet the construction requirements of Clause 6.1.2 and the location requirements of Clause 6.4.2.
. . .
6.5.4 All connections to an enclosed supply tank having a capacity or more than 500 gallons shall be made through the top of the tank and means shall be provided to prevent siphoning except where oil Types Nos. 5 and 6 are used.
. . .
6.5.6 Each tank enclosure shall:
(a) Have walls constructed of solid masonry units or poured concrete construction having a fire-resistance rating of not less than 3 hours;
(b) Have the walls bonded to the floor;
(c) Have a floor of concrete or other non-combustible construction;
(d) Have a top with a fire-resistance rating of not less than 3 hours and bonded to the walls;
NOTE: The floor and ceiling assembly above may be used to provide any or all of this fire-resistance rating.
(e) Have at least 24 inches clearance around the tank for the purpose of inspection and repair;
(f) Have an access opening and self-closing closure having a fire-resistance rating of not less than 3 hours. If such entrance is a doorway, it shall be:
(i) Closed by a self closing fire door; and
(ii) Provided with a non-combustible liquid tight sill or ramp to a height corresponding to the height of the oil that will be retained, and at least 6 inches high;
(g) Have walls to the height of the retained oil, built to withstand the natural pressure due to the liquid head of the retained oil when this height exceeds 6 inches.
. . .
6.9 Venting of Supply Tanks
6.9.1 Each supply tank over 10 gallons capacity shall be provided with means for venting, complying with Clause 8.3 in regard to piping.
6.9.2 Vent openings and vent pipes shall be of ample size to prevent the development, due to filling, emptying, or temperature changes, of abnormal pressures or vacuum in the tank which may distort the tank, and in no case shall the vent opening or vent pope be less than the inside diameter or pipe size specified in Table 3.
TABLE 3
MINIMUM DIAMETER OF VENT OPENING, VENT PIPE
|
Capacity of Tank, Gallon |
Inside Minimum Diameter of Vent or Iron Pipe Size, Inch |
|
500 or less over 500 – 2,500 over 2,500 – 8,500 over 8,500 – 16,600 over 16,600 – 30,000 |
1 ¼ 1 ½ 2 2 ½ 3 |
NOTE: Where tanks are filled by the use of a pump through tight connections, special consideration should be given to the size of the vent pipe to ensure that it is adequate to prevent the development of abnormal pressure in the tank during filling.
6.9.3 Vent pipes shall be installed to drain toward the tank and shall be without sags or traps in which liquid can collect.
6.9.4 The lower end of the vent pipe shall be connected:
(a) At the top of the tank and shall not extend into the tank more than 1 inch;
(b) To a vent alarm.
6.9.5 A supply tank installed underground or inside a building, except an integral supply tank approved as part of the appliance, shall be provided with a vent pipe to vent to open air outside buildings.
6.9.6 A vent pipe shall terminate at an elevation above the entry to the till pipe and the outlet shall be provided with a weatherproof hood or weatherproof vent cup having a minimum free open area at least equal to the cross-sectional area of the vent pipe.
6.9.7 A vent pipe which terminates adjacent to a building shall be installed to terminate at a point:
(a) Close to the building wall;
(b) At least 7 feet above the ground level; and
(c) Not less than 2 feet from any window intended to be opened or other building opening or vertical projection of any window or building opening at a lower elevation than the entry to the fill pipe.
6.9.8 When vent pipes from two or more tanks are connected to a common vent they shall be connected as follows:
(a) The common vent pipe shall be at least one pipe size larger than the largest vent pipe from the individual tanks; and
(b) The point of connection shall be at an elevation above the elevation of the entry to each of the fill pipes to the individual tanks.
[66] Earlier at para. 57 I set out the trial judge’s conclusion that the tanks and their installation did not meet the requirements of CSA B139. The trial judge focussed on the fact that the tanks were bottom connected rather than at the top of the tanks as required by para. 6.5.4. However, in his view, there was no evidence this non-compliance with the Code was the cause of the oil escaping from the tanks, but that the separation between the walls and the floor did contribute to the damage suffered by Park Place.
[67] The trial judge identified the position of Ultramar and G & S:
[77] Ultramar and G&S submit Park Place is contributorily negligent, in that, the fuel tank storage system was deficient, did not meet the applicable Building Code requirements, and the tank room was not liquid tight.
[68] As will be outlined later, the trial judge found Park Place to be contributorily negligent with respect to the condition of the tank room. However, he said nothing about the contention that Park Place was contributorily negligent due to the alleged deficiencies in the tanks.
[69] The case law is somewhat divided in support of Ultramar and G & S’s contention that Park Place should have been found guilty of contributory negligence with respect to the alleged deficiencies in the tanks.
[70] In F. W. Argue Ltd. & Hemphill v. Howe, [1969] S.C.R. 354 the trial judge heard multiple actions brought by various plaintiffs against Argue and its employee Hemphill. The plaintiffs sought recovery for property damage caused by a fire alleged to have been caused by the negligence of the defendants. In 1961 Hemphill delivered 471 gallons of fuel oil to a building owned by Howe. Howe’s tank had a capacity of 300 gallons. The excess oil flooded the basement. The furnace came on, igniting the oil, causing extensive damage to the premises of Howe, and adjoining property owners. All the claims were dismissed by the trial judge on the basis that they were barred by the limitation period prescribed by the Ontario Highway Traffic Act.
[71] The trial judge went on to consider the merits of the claims, and found Howe was negligent in failing to keep his heating equipment in repair when he knew it was old and there was slack in the vent pipe connection to the storage tank. Nonetheless, the trial judge found Hemphill to be guilty of “ultimate negligence” and would have awarded 100% of Howe’s claim.
[72] The Ontario Court of Appeal found the limitation period did not apply, and also reversed the trial judge’s decision with respect to apportionment of fault as between Howe and the defendants. Laskin J.A, as he then was, noted the presence and role of a vent whistle. Once the whistle stops, the delivery man is alerted to shut off the pump. If the inflow continues there will be a gurgling in the vent pipe as the excess oil comes up, and will eventually plop out of the vent pipe.
[73] Previous deliveries had been made. It was known to Hemphill that the vent whistle was faint. Howe had been warned by his tenant of the smell of oil following a delivery. He said he inspected the tank but saw nothing amiss. Evidence established that the vent pipe was not screwed into the tank, but was held there by a rubber compression ring that was loose. There was conflicting evidence that Howe had alerted Argue of the smell. Laskin J.A. summed up his analysis of the negligence by the delivery man and the property owner as follows:
14 Hemphill's negligence in this case consisted in his failure to shut off the flow of oil when he no longer heard the whistle, and particularly when he could hear no gurgle. He had made two previous deliveries of oil to the premises, on January 10th and January 19th, discharging 241 and 151 gals. respectively, on those occasions. Knowing the rate of flow, he should have realized, if he was at all alert to time, that he was overtaxing the capacity of the tank. Beyond this he showed poor judgment in leaving the premises, after seeing the basement flooded with oil, without turning off the oil furnace or ensuring that this would be done. Howe's negligence consisted in his failure to put and keep his heating equipment in repair, when he knew that it was old, that there was some slack in the vent pipe connection to the storage tank, that the smell of oil was evident after a delivery and that deliveries were being made periodically. This negligence contributed to the damage arising from the negligence of Hemphill.
(1966) 57 DLR (2d) 691, [1966] O.J. No. 1026
[74] Laskin J.A. apportioned liability 60% to the defendants, 40% to the property owner Howe.
[75] The defendants appealed to the Supreme Court of Canada on the limitation issue, the plaintiff on the apportionment of liability. The Supreme Court agreed that the limitation period did not apply. Spence J. wrote the judgment of the Court. He was prepared to agree that Howe had been negligent as described by Laskin J.A., but not that the negligence had contributed to the damage arising from the negligence of the delivery man, Hemphill. Spence J. described the negligence of Hemphill as his failing to stop pumping oil as soon as the sound of the vent whistle stopped, which negligence continued by his seeming reliance on the gurgle in the pipe or ultimate plop of oil on the ground. If Hemphill had been paying any attention whatsoever he had to know he was delivering a quantity far in excess of the norm.
[76] As to the argument that had the compression collar for the vent pipe been repaired resulting in less damage, there was no evidence to prove the vent pipe had become disengaged due to looseness and not due to the increased pressure from the oil delivery which had overfilled the tank. He wrote (p. 372):
...Upon the whole of the evidence, I have come to the conclusion that the sole negligence which caused or contributed to the damage was that of the defendant Hemphill and of the defendant Argue, for that defendant company had notice of both the faintness of the whistle and of the smell of oil which had been present for the last fill of the tank.
...Under these circumstances, the negligence, if any, of the plaintiff, cross‑appellant, being not negligence which caused or contributed to the damage, the plaintiff should be entitled to recover his damages in full. ...
[77] Arguments of contributory negligence due to loose gauge fittings were similarly unsuccessful in Valcourt v. Langlais (1970), 3 N.B.R. (2d) 123 (Q.B.) and Spence and Spence v. Gillis (1976), 14 N.B.R. (2d) 604 (Co.Ct.).
[78] G & S and Ultramar place considerable reliance on Jasin v. People’s Co-operative Ltd. (1978), 92 D.L.R. (3d) 340, [1978] M.J. No. 70 (C.A.). The plaintiff owned a home in Winnipeg. It had a 250 gallon oil tank. She was a new customer for the defendant. On October 25, 1976 she signed a contract requesting automatic oil delivery. She made her first request for an oil delivery on October 27, 1976. The next day the defendant delivered 117.5 gallons of oil. The delivery man left the invoice outside the plaintiff’s front door.
[79] When the plaintiff returned home on October 28, 1976 she did not check to see if oil had been delivered. On October 29, 1976 she called the defendant and made a further request for an oil delivery, explaining the urgent nature of her request due to the expected return of her husband from the hospital. The defendant did not check their records. It sent a different delivery man who delivered 322.8 gallons of oil.
[80] When the plaintiff came home she found her basement flooded with oil. An experienced heating serviceman came. He found the gauge on the tank disconnected, leaving a space at the top of the tank through which oil could escape. The defendants did not call any of its employees involved in the deliveries. The trial judge dismissed the plaintiff’s claim on the basis that the damage suffered by her was due solely to her own negligence and not that of the defendant.
[81] The plaintiff appealed. The majority judgment was given by Matas J.A. He agreed with the trial judge that the plaintiff was negligent by permitting her tank gauge to be disconnected, not checking on October 28 to see if oil had been delivered, and by then demanding a further oil delivery. However, he was of the view that it was not her negligence alone that caused the accident. The negligence by the defendant was: in not knowing the size of the plaintiff’s oil tank; carrying out a delivery of oil in the absence of any warning signal; and that the only reasonable inference was that the driver did not take any steps to minimize the danger of an overfill. The majority found both the plaintiff and defendant equally responsible.
[82] Monnin J.A. dissented. He agreed with the trial judge’s conclusion that the sole cause of the damage to the plaintiff’s home was the disconnected tank gauge even though it was unknown to the plaintiff that the gauge on her tank was disconnected and laying on top of her tank. He concluded his reasons with the observation: “One who keeps in his basement an open fuel tank ought not to be heard to complain when oil is spilled upon a requested delivery of oil.”
[83] G & S and Ultramar argue that the emergency vents in the tanks were contrary to the requirements of the standards mandated by CSA B139 and were akin to having an open oil tank. As in Jasin, if the tank had been sealed, the oil would have simply gurgled as it came back up the vent pipe, and at worst, deposited some quantity of oil on the ground outside.
[84] With respect, no witness testified that the presence of emergency vents on the tanks was contrary to the standards mandated by CSA B139. I would concede that the combination of paras 6.1.2.2, 6.1.2.3, and 6.9.5, and common sense, would indicate that tanks of this size should be liquid and vapour tight and vent only to the outside.
[85] However, there is much to be said for the position of Park Place that neither it, nor its related corporate entities that constructed the complex, failed to exercise reasonable care. They hired professionals to design and build the complex according to NBC requirements. The responsible authority approved their plans and issued the appropriate permits to construct and occupy the premises.
[86] The reason that bricks were stacked on top of the emergency vents was to provide a tighter seal against vapours escaping from the tanks when they were being filled. As in Howe v. Argue and Hemphill, supra, the owner did not have any system to inspect the tank system, carried out no maintenance or periodic review of it. Despite these deficiencies, the trial judge declined to find Park Place contributory negligent with respect to the condition of the tanks.
[87] The trial judge found the cause of the oil spill was the negligence of G & S. If Mr. Greek had been at the fill pipe he would have heard the whistle cease and accordingly stopped pumping. He failed to do so. I am unable to conclude that in these circumstances the trial judge committed a palpable and overriding error in failing to find a lack of reasonable care by Park Place due to the presence of tanks equipped with emergency vents.
[88] The last argument related to the claimed deficiencies of the tanks is that the actions of G & S were not the proximate cause of the loss. In other words, the loss was too remote to permit recovery. They say, had the tanks been up to Code, any overfill would result in an oil spill through the vent pipe outside, causing minimal damage as compared to the oil spill that occurred inside the tank room. This is a new argument. It was not raised at trial. In any event, I do not accept it has merit.
[89] At trial G & S and Ultramar acknowledged a duty was owed to use reasonable care in delivering oil, but argued that Mr. Greek had exercised reasonable care by following industry standards in delivering oil on May 25, 2006. As already described, they contended the whistle sounded throughout the delivery of oil and Mr. Greek never left the fill pipe. Mr. Greek was emphatic about the importance of hearing the whistle and never leaving the fill pipe during a delivery. He testified:
A. Well, yes, I stayed there. Any time I'm filling, I have to be, that's ...
Q. Why?
A. Oh, it's extremely important. I mean it would be totally irresponsible to walk away anywheres from that pipe while you're filling because that's a disaster waiting to happen, if you do.
Q. Why do you say that?
A. Because the oil will all come back up the pipe, all over the ground, come all over your clothes, if you're there, everything. That's where the oil comes, is up the vent usually, if you have that kind of thing happen on it. And that would be total neglect, by the way, if you were to walk away from that pipe. No good responsible person would ever do that.
[90] The trial judge found as a fact that Mr. Greek breached the duty of care he owed by being away from the fill pipe during the delivery of oil. The evidence was clear from Mr. Greek that to be anywhere but at the fill pipe is a disaster waiting to happen. An oil spill is a reasonably foreseeable event. The fact that the damages suffered by a plaintiff did not happen as one might usually predict does not make them too remote (see Hughes v. Lord Advocate, [1963] A.C. 837; Jolley v. Sutton London Borough Council, [2000] 1 W.L.R. 1082 (H.L.).
[91] Here, in my opinion, the fact the oil spill happened inside the building does not make the loss too remote. An oil spill was, on the evidence of Mr. Greek, a foreseeable event if he failed to exercise reasonable care. Having failed to exercise reasonable care, he cannot complain that the spill did not occur as he said, “usually” up the vent pipe.
[92] The cross-appeal by Park Place says it should not have been found contributorily negligent. It focusses on two complaints: the burden was on the defendants to establish contributory negligence and they failed to call any evidence to establish what was the standard of care for an owner of a hotel/ commercial property complex; and the trial judge erred in interpreting CSA B139 as requiring the tank room to be liquid tight.
[93] I have earlier set out the relevant provisions of B-139. Park Place says in its factum that the only provision that could have led the judge to find B-139 required the tank room to be liquid tight is para. 6.5.6(b) requiring the walls to be “bonded to the floor”. With respect, I cannot agree. Paragraphs 6.5.6(f) and (g) clearly point to an intention that a room containing large oil tanks be liquid tight. Paragraph (f) stipulates that the doorway to the room must have a non-combustible liquid tight sill or ramp to a height corresponding to the height of the oil that will be retained, and at least 6 inches high. Paragraph (g) provides that the walls of the room must, to the height of the retained oil, be built to withstand the natural pressure due to the liquid head of the retained oil when this height exceeds six inches. I find no error in the implicit acceptance by the trial judge that B139 did require the tank room to be liquid tight.
[94] As Park Place forcefully argued to the trial judge, and in this court, not only did it not design nor build the complex, those that did relied on professional designers and contractors to meet the requisite standards. How then could Park Place be guilty of failing to use reasonable care simply because the tank room did not meet the standards in force at the time of construction? However, it must be emphasized that the trial judge did not find Park Place to be contributorily negligent due to the fact the tank room did not meet the NBC standards set out in CSA B139. Nowhere in his judgment does he say so.
[95] The role of regulatory standards in informing if conduct meets or falls below the standard of care of an ordinary, reasonable, prudent person is well settled. In Ryan v. Victoria (City), [1999] 1 S.C.R. 201, Major J., for the Court, wrote:
28 Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
29 Legislative standards are relevant to the common law standard of care, but the two are not necessarily co‑extensive. The fact that a statute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but it does not extinguish the underlying obligation of reasonableness. See R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. Thus, a statutory breach does not automatically give rise to civil liability; it is merely some evidence of negligence. See, e.g., Stewart v. Pettie, [1995] 1 S.C.R. 131, at para. 36, and Saskatchewan Wheat Pool, at p. 225. By the same token, mere compliance with a statute does not, in and of itself, preclude a finding of civil liability. See Linden, supra, at p. 219. Statutory standards can, however, be highly relevant to the assessment of reasonable conduct in a particular case, and in fact may render reasonable an act or omission which would otherwise appear to be negligent. This allows courts to consider the legislative framework in which people and companies must operate, while at the same time recognizing that one cannot avoid the underlying obligation of reasonable care simply by discharging statutory duties.
[96] Park Place acknowledges that later versions of the National Building and National Fire Code do specifically mandate that such tank storage rooms be liquid- tight. Regardless, the trial judge did not simply rely on an alleged failure to comply with the NBC or other Codes in finding contributory negligence.
[97] The reasoning by the trial judge is clearly set out. He correctly set out the appropriate test to assess the issue of contributory negligence:
[78] The test for contributory negligence was set out in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, where McLachlin, J. stated at p. 1254:
I accept the defendants’ submissions. The test for contributory negligence was summarized by Denning L.J. in Jones v. Livox Quarries Ltd., [1952] 2 Q.B. 608 (C.A.), at p. 615:
Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.
[98] The uncontradicted evidence was that Park Place had operated the complex for 15 years. It never had the tanks serviced. There were no contracts for the ongoing maintenance or service of the oil tanks. The employees had no instructions concerning the tank room. The Chief Engineer said he had no knowledge about the oil tanks, or the tank room. He said he assumed it was liquid tight, but did not make any inspection to determine if in fact it was. When the oil spill occurred, he was surprised to see the oil level in the room going down because he thought the room was liquid tight. When he had done his inspections of the tank room he was looking for oil leaks from the tanks as he was aware of the significant amount of damage that could be caused by an oil leak.
[99] The operations manager of the complex visited the tank room once or twice a month. He also thought the tank room was a containment room, that is, it was liquid tight.
[100] However, witnesses testified that there was an obvious gap between the floor and walls in the tank room. It was easy to see, clear to the naked eye. Gordon Parsons, a civil engineer is a V.P. and CEO of the Armour Group. He testified he knew there was a half inch gap between the floor and the walls in the tank room. It was filled with asphalt impregnated fibreboard which he also knew was in no way a sealant – that fuel oil would go through it. The evidence was that the effort and cost to make the room liquid tight was minimal.
[101] Given this evidence, the trial judge found:
[83] I find an ordinary, reasonable and prudent operator of a hotel and office complex would reasonably foresee if there was an oil leak from an oil storage tank and the tank room in which the oil tank was located was not liquid tight, oil could escape from the tank room, thereby causing damage. I find Park Place is contributorily negligent.
[102] Not only do I find no error by the trial judge, I respectfully agree with his analysis and conclusion. Park Place does not point to any extricable legal error by the trial judge in finding contributory negligence. In my opinion, the evidence established that it was foreseeable that if Park Place did not act as a reasonable and prudent person, harm could occur. The employees of Park Place believed that the tank room was liquid-tight and would have taken steps to make it so had they realized it was not. Others could easily see the obvious gap filled with porous material. The deficiency in the room was easy and inexpensive to remedy. It was therefore open to the trial judge to find contributory negligence.
[103] Park Place submits legal error occurred because there was no specific evidence of the appropriate standard of care for an ordinary, reasonable and prudent operator of a hotel and office complex. The only case cited in support of this proposition is St-Jean v. Mercier, 2002 SCC 15. With respect, this case does not assist the argument of Park Place.
[104] In St-Jean there was no issue about the presence or absence of evidence as to the appropriate standard of care. The plaintiff was seriously injured when struck by a car. He was treated by two physicians who failed to diagnose a broken neck. The two physicians were sued for fault under the Civil Code of Quebec. Five medical experts testified for each side about the standard of care. The trial judge found neither fault nor causation had been proven. The excerpt relied upon by Park Place from St-Jean is from the unanimous reasons for judgment by Gonthier J. where he wrote:
53 The correct inquiry to be made in assessing whether a professional committed a fault is indeed to ask whether the defendant behaved as would a reasonably prudent and diligent fellow professional in the same circumstances (J.‑L. Baudouin and P. Deslauriers, La responsabilité civile (5th ed. 1998), at p. 850). To ask, as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focussing on the result rather than the means. Professionals have an obligation of means, not an obligation of result. [Emphasis in original.]
[105] The presence of expert evidence in an action against a professional such as a physician is the norm. Conduct that accords with well recognized and acceptable professional practice will usually, but not necessarily, defeat an allegation of negligence (see ter Neuzen v. Korn, [1995] 3 S.C.R. 674). I see no basis to elevate an operator of a hotel and commercial complex to the level of a professional exercising his or her skill in a specialized or technical area. There was nothing technical or specialized about the conduct in this case.
[106] The interplay between specific evidence about the appropriate standard of care and a finding of negligence was carefully reviewed in Burbank v. Bolton [Burbank v. R.T.B.], 2007 BCCA 215, (leave denied [2007] S.C.C.A. No. 316). (See also the companion case of Radke v. M.S. (Litigation guardian of), 2007 BCCA 216.) In Burbank, an accident occurred during a high speed pursuit by a police officer. The trial judge found the officer partially at fault by creating an unreasonable risk of harm. The complaint on appeal was that there was no evidence adduced at trial as to the appropriate standard of care by a reasonably competent police officer. The majority, Lowry and Chaisson JJ.A, gave separate concurring judgments. Lowry J.A wrote:
[57] It is first important to recognize that in a negligence action it is not usually necessary to adduce evidence, much less expert evidence, to prove the standard of care. It is generally a matter to be determined by the trier of fact based on common experience having due regard for what may be taken from any applicable legislation or policies governing the activity in question; in some instances, evidence of custom associated with any particular conduct may also be germane. It is only where the subject matter of the inquiry is beyond the common understanding of judge and jury that expert evidence may be adduced to assist the court in determining the appropriate standard of care.
[107] Although the court in Burbank split in result, and Chaisson J.A gave separate concurring reasons, on this point, I can discern no difference in opinion in any of the three reasons for judgment.
[108] From the evidence at trial, Coughlan J. determined it was reasonably foreseeable, by an ordinary, reasonable and prudent operator of a hotel and office complex, if there was an oil leak in the tank room, and if the room was not liquid- tight, that oil could escape and cause damage. The conclusion was reached by the trial judge simply applying common knowledge and experience to the facts as he found them. There was ample evidence to support this conclusion and I would therefore dismiss the cross-appeal.
SUMMARY AND CONCLUSION
[109] The claimed errors by G & S and Ultramar are a request that this court retry the case, substituting our views on matters of credibility or inferences to be drawn from the evidence. Absent palpable and overriding error, we are not permitted to interfere in findings of fact or mixed fact and law unless there is an extricable legal issue upon which the trial judge erred. Having carefully reviewed the complete record below, I am not satisfied the trial judge committed any such error and would dismiss the appeal.
[110] The claim by Park Place in its cross-appeal focusses on alleged legal errors by the trial judge in his interpretation and reliance on the NBC, and in finding contributory negligence in the absence of specific evidence on the standard of care. In my opinion, the trial judge committed no such errors, and I would dismiss the cross-appeal.
[111] The trial judge awarded costs to Park Place, and required G & S to indemnify Ultramar for all amounts, including costs, it might be required to pay to Park Place. The parties agreed on costs at trial of $32,000. Forty percent of this would amount to $12,800. In light of the divided success on appeal, the only order on costs I would make is for G & S to pay costs to Park Place in the amount of $7,500.
Beveridge, J.A.
Concurred in:
MacDonald, C.J.N.S.
Hamilton, J.A.