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Civil Litigation, Environmental

Defending oil burner technicians against negligence claims complicated

Toronto civil litigator Natalie Leon says her professional liability work takes her into many different areas of law, which has included an increase in negligence claims against oil burner technicians.

“I have five upcoming trials all involving oil burner technicians accused of being negligent, with claims ranging from $300,000 to $1.5 million,” she tells AdvocateDaily.com.

Leon, partner with Forbes Chochla LLP, explains that many homes in Ontario — particularly outside of major cities — are still heated by exterior oil tanks.

“The technicians who service these tanks are regulated by the Technical Standards & Safety Authority,” she says. “They will visit homes heated by oil once a year to clean out the furnace and check the tank and every once in awhile there might be a problem that they come and service, such as when a tank starts leaking.”

Leon explains that when a tank fails, it’s usually the result of internal corrosion.

“Water can get into the tank and you don’t know when it’s introduced, but at some point it will start internally corroding the tank. Eventually the tank — specifically one type of tank that was used in the late 1990s with a side discharge outlet — winds up getting a pinhole leak and then the homeowner has to remediate, which can cost hundreds of thousands of dollars.”

If these incidents end up in court, she says it’s all the same players who are getting sued — the fuel delivery company, the oil tank manufacturer (many of which are now out of business), and the oil burner technicians who Leon regularly represents.

“A technician will only tag a tank for replacement when a tank appears to be in a dangerous condition or if it looks like it’s not going to maintain its integrity. This is what is mandated by law. Meanwhile, technicians are accused of being negligent every time a tank fails when really there’s no test available to technicians that can predict tank failure as the corrosion occurs internally.

Leon notes there was a change in the legislation in 2007, where as part of annual maintenance, technicians have an additional requirement for outdoor tanks.

“Essentially technicians insert a pasted stick into the tank to test for water,” she says. “If they find water, they’re supposed to remove it. Whenever this isn’t done, technicians are accused of being negligent but that’s too simple an argument. It’s not guaranteed a stick is going to find water in the tank. For example, when a technician is doing maintenance in the winter, the water could be frozen at the bottom of the tank.”

Even if a technician finds water, the act doesn’t say the tank has to be removed from service, only that the water has to be removed.

“For the particular style of tank that keeps failing, it was impossible to remove all of the water because the valve is a couple of inches above the bottom,” Leon explains. “So a technician could drain it, but some water would always remain at the bottom, corroding the tank.

“I’ve been arguing against this causation argument,” she says. “A big part of my practice is dealing with oil leaks as well as all of the environmental standards, if the migration is spreading off a homeowner's property.

“You could actually live with contamination on your property, which some people may not realize,” Leon says. “If you sell your home, then obviously you have to disclose this, but the Ministry of the Environment doesn’t become involved and require you to clean up your property unless the contamination is migrating off-site in most cases.”

This type of scenario will invoke insurance issues.

“If you do have an oil leak that turns into a spill, many homeowners’ insurance policies have exclusions for contamination,” she says. “However, when it comes to third party liability, your insurer has to cover you if somebody sues you as a result of your oil contamination spreading. In that case, a homeowner’s insurer may clean up the spill despite the lack of coverage just to avoid the possibility of the contamination spreading and a third-party claim.

“I’ve had to venture into all these different areas of environmental law and insurance coverage, which keeps things interesting.”

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