Lobbying Queens Park regarding TSSA Regulations

August, 2010  --  Over the past few months the Ontario Chapter of the Canadian Oil Heat Association has stepped up its lobbying efforts through meetings with politicians and bureaucrats at Queen’s Park. The purpose of these meetings and communiqués has been to discuss the negative impact that a specific section of Ontario Regulation (Fuel Oil) 213/01 is having on the oilheat industry throughout the province.

One of the main challenges facing oilheat distributors in Ontario is liability for leaks and spills – a situation not supported by the laws of the province.

Because of current regulatory practices, oilheat distributors have de facto liability when accidents occur, even when those distributors have little or no control over the upkeep, inspection or safety of storage tanks and systems. 

The Technical Standards and Safety Act (TSSA), 2000 puts the onus on the distributor to ensure that the tank and oilheat system are in compliance with all TSSA regulations before oil is delivered. The regulation states:

7. (1)  No [oil] distributor shall supply fuel oil to a container or tank system that is connected to an appliance or work unless the distributor is satisfied that the installation and use of the appliance or work comply with this Regulation
A) Unless the distributor has inspected the appliance or work at least once within the previous 10 years; or
B) Unless the distributor has inspected the appliance or work in accordance with quality assurance inspection program.

In other words, prior to oil delivery, tanks must be properly inspected and meet all TSSA regulations.  Once inspected, oil suppliers are able to deliver heating oil for 10 years without any further inspections to the tank or the heating system. 

Practically, however, there is no way for the distributor to be assured a tank or system is safe. Over the course of 10 years, a lot can happen to a tank. It can become damaged or faulty, without anyone’s knowledge.  These defects may not be readily apparent from the outside of the tank, and therefore nearly impossible for oil heating suppliers to detect. 

For instance, construction near a tank could accidentally move or tip the tank.  If this construction takes place between oil deliveries, the distributor would have no way of knowing of the possible damage to the tank, but would nonetheless be held responsible for a subsequent spill.

It is not only unreasonable but also impractical for oil suppliers to be held responsible, legally or otherwise, for ensuring tanks are well maintained and uncompromised.  While oil suppliers routinely flag tanks that have visible safety issues and subsequently halt oil delivery to these consumers, oil suppliers cannot ensure the safety of the entire system, at any time, without a thorough inspection.

Under current regulatory practice, however, oil distributors are being held legally responsible when spills or leaks occur.  In close to 95 per cent of lawsuits related to spills or leaks the oil distributor is named, regardless of their culpability.

This has resulted in a number of legal actions.  Nearly two-thirds of COHA Ontario members report they have been named in a claim for a fuel oil spill in the last three years – despite having no responsibility for causing the spill.  Many members have been forced into multiple claims, with some facing as many as ten. The cost to these companies has been hundreds of thousands of dollars, including liabilities, deductibles, higher insurance premiums and administration costs.

Given the safety concerns of damaged or faulty oil heating tanks and systems, and the limitations of fuel suppliers to monitor the tanks, COHA Ontario believes that the only way to ensure the timely and proper inspection of oil heating systems is to put the responsibility on the owners of the oil heating systems – as is the case in most other jurisdictions. 

This approach would require a change to TSSA guidelines.  It would, however, be consistent with the Canadian Standards Association’s Ontario installation code for oil-burning equipment, which states, in section 13.2.1:  “The owner of the oil-burning equipment shall ensure that it is maintained in accordance with Clauses 13.2 to 13.5 at least once every three years.”

Amending the TSSA Section 7.1 regulation would reflect both the existing Code and the reality of the situation.

Besides the Code, there is a precedent – both domestically and internationally – for placing the responsibility for maintenance on owners. Our research indicates that Ontario is unusual in the way it places liability on its distributors.  In most other jurisdictions, oilheat tank owners are liable for the maintenance and inspection of their oil heating systems.

To date, members of the TSSA/Regulations Committee and COHA Ontario Chapter Staff have met or have communicated with the Ministries of Consumer Relations, Environment, Northern Affairs & Mines and Agriculture.

For more information contact Constance Wrigley-Thomas at constance@coha-ontario.ca or
1-855-336-8943.