Westco Storage Ltd. et al. v. Inter-City Gas Utilities Ltd. et al., (1989) 59 Man.R.(2d) 37 (CA)

• Judge: Huband, Philp and Lyon, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 24, 1989
• Jurisdiction: Manitoba
• Citations: (1989), 59 Man.R.(2d) 37 (CA)

Westco Storage v. Inter-City Gas (1989), 59 Man.R.(2d) 37 (CA)

MLB headnote and full text

Campbell Soup Company Ltd., Carnation Inc., American Can Canada Inc. and McCain Foods Limited (plaintiffs/respondents) v. Inter-City Gas Utilities Ltd. and Brian Ostapowich (defendants/appellants)

(Suit No. 456/87)

Westco Storage Ltd. (plaintiff/respondent) v. Inter-City Gas Utilities Ltd. and Brian Ostapowich (defendants/appellants)

(Suit No. 457/87)

Indexed As: Westco Storage Ltd. et al. v. Inter-City Gas Utilities Ltd. et al.

Manitoba Court of Appeal

Huband, Philp and Lyon, JJ.A.

April 24, 1989.

Summary:

A storage facility owned by the plaintiff (Westco Storage Ltd.) was destroyed by an explosion. Westco commenced an action against the defendants (a natural gas company, and its supervisor, and a welder and his employer), alleging that the explosion was caused from gas leaking from a faulty weld in a gas pipeline. The companies who used the storage facility, the bailors (Campbell Soup Company, Carnation Inc., American Can Canada Inc. and McCain Foods) also commenced actions against the defendants, alleging negligence. The bailors commenced an action as well against the storage facility owner, Westco, to be proceeded with only if they were unsuccessful against the other defendants.

The Manitoba Court of Queen's Bench, in a decision reported in 48 Man.R.(2d) 36, allowed the storage facility's owner's (Westco), and the bailors' negligence actions, holding that the explosion was caused by the negligence of the welder and his employer and the gas company and its supervisor. The court ordered, however, that no contribution be made by the welder or his employer, because of the circumstances under which the weld was made. The court did not deal with the bailors' action against the storage facility owner because of its finding on the bailors' action against the defendants. The gas company appealed.

The Manitoba Court of Appeal allowed the appeal and dismissed Westco's action against the gas company.

Evidence - Topic 203

Inferences and weight of evidence - Inference defined - Conjecture v. inference - The Manitoba Court of Appeal referred to the distinction in law between conjecture and inference - See paragraph 88.

Evidence - Topic 2285

Judicial notice - Particular matters - Building trade practices - A judge of the Manitoba Court of Appeal stated that "I think it is a matter of notorious fact that a concrete structure, constructed in segments, attached in part to an existing concrete grade beam and block wall, without sealing of joints, unheated, and exposed to the elements, could not be airtight" - See paragraph 89.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - The Manitoba Court of Appeal stated that "expert witnesses, because of their special study or experience, are permitted to give opinions to assist the trier of facts (whether a judge or a jury) to draw inferences. Just as an inference that a trier of fact may draw must be a reasonable deduction from the evidence, so must the opinion of the expert (which is also an inference) be founded upon observed and proven facts" - See paragraph 57.

Torts - Topic 49.11

Negligence - Standard of care - Welders - A natural gas company rerouted a pipeline to a storage facility - A welder hired by the company made a faulty weld - Gas escaped from the weld, allegedly causing an explosion - The trial judge held that the explosion was caused in part by the welder's negligence, for which the company, as his employer, was vicariously liable - The court, however, exempted the welder and employer from contribution because of the circumstances under which the weld was made - The Manitoba Court of Appeal exonerated the gas company from liability for lack of proof that the negligence caused the explosion.

Torts - Topic 65

Negligence - Causation - Evidence - Onus of proof - The Manitoba Court of Appeal held that the onus of proving causation of negligence rests on the plaintiff - See paragraphs 48 to 49.

Torts - Topic 4115

Suppliers of services - Duties - Installer of equipment - Natural gas pipeline - A natural gas company rerouted a pipeline to a storage facility - A welder hired by the company made a faulty weld and the gas company did not cap off the old pipeline - Gas escaped from the weld and travelled through the old pipeline to the storage facility, which was destroyed in an explosion - The trial judge held that the explosion was caused by (1) the welder's negligence for which his employer was vicariously liable, (2) the negligence of the gas company's supervisor for not supervising the welder, for which the company was vicariously liable, and (3) the negligence of the gas company for not capping the old pipeline and for not repairing the leak when it ought to have known of its existence - The Manitoba Court of Appeal exonerated the gas company from liability for lack of proof that the negligence caused the explosion.

Torts - Topic 4117

Suppliers of services - Duties - Supervision - Natural gas pipeline - A natural gas company rerouted a pipe line to a storage facility - A welder hired by the company made a faulty weld and the gas company did not cap off the old pipeline - Gas escaped from the weld and travelled through the old pipeline to the storage facility, which was destroyed in an explosion - The trial judge held that the explosion was caused in part by the negligence of the gas company's supervisor for failing to adequately supervise the welder, for which the gas company was vicariously liable - The Manitoba Court of Appeal exonerated the gas company from liability for lack of proof that the negligence caused the explosion.

Torts - Topic 4630

Dangerous activities - Gas transmission pipelines - Excavation and construction of - [See Torts - Topic 4115 above].

Torts - Topic 7410

Joint and concurrent tortfeasors - Contribution between tortfeasors - Contribution orders - General - A welder made a faulty weld in a rerouted pipeline, allegedly allowing gas to escape under a storage facility, which was destroyed in an explosion - The trial judge held that the explosion was caused in part by the negligence of the welder, for which his employer was vicariously liable - The court, however, exempted the welder and his employer from contribution because of the circumstances under which the weld was made - The Manitoba Court of Appeal exonerated the gas company from liability for lack of proof that the negligence caused the explosion.

Cases Noticed:

Rylands v. Fletcher, L.R. 3 Q.B. 733, not appld. [para. 46].

McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.), refd to. [para. 48].

Wilsher v. Essex Area Health Authority, [1988] 1 All E.R. 871; 87 N.R. 140 (H.L.), appld. [para. 49].

Stein Estate v. The Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 52].

N.V. Bocimar S.A. v. Century Insurance Company of Canada, [1987] 1 S.C.R. 1247; 76 N.R. 212, refd to. [para. 53].

Phillips v. Ford Motor Co. of Canada Ltd., [1971] 2 O.R. 637, refd to. [para. 58].

Jaskolka v. Bressi, [1969] 1 O.R. 810, refd to. [para. 58].

Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, refd to. [para. 88].

Canadian Pacific Railway Company v. Murray, [1932] S.C.R. 112, refd to. [para. 88].

Authors and Works Noticed:

Linden, Canadian Tort Law (4th ed.), pp. 101-103 [para. 48].

Counsel:

I.W. Outerbridge, Q.C., D.C.H. McCaffrey, Q.C., P.B. Forsyth and C.J. Gillespie, for the appellants, Inter-City Gas Utilities Ltd. and Brian Ostapowich;

R.D. McDonald and R.A. Simpson, for the respondent, Westco Storage Ltd.;

E.W. Olson, Q.C., and R.E. Stephenson, for the respondents, Campbell Soup Company Ltd., Carnation Inc.;

American Can Canada Inc. and McCain Foods Limited.

This appeal was heard before Huband, Philp and Lyon, JJ.A., of the Manitoba Court of Appeal on June 20-23 and July 5-7, 1988. The decision of the Court of Appeal was delivered on April 24, 1989, when the following opinions were filed:

Philp, J.A. - see paragraphs 1 to 122;

Huband, J.A. - see paragraphs 123 to 126;

Lyon, J.A. - see paragraphs 127 to 133.