Municipal liability for flood claims.

• Author: Rieksts, Mark
• Position: FEATURE on municipal law

Municipal corporations exist as legal entities, separate and apart from their elected and appointed officials, and in that capacity can sue and be sued. Municipalities are also creatures of provincial enabling legislation under which they are given the powers they require in order to provide a variety of public works and services. As part of their mandate as public authorities, municipalities are charged with the tasks of providing to, and maintaining for, their citizens' sewage, water, and drainage systems. As a result, municipalities face a variety of claims for damages caused by flooding from water main breaks, lateral obstructions, sewage backups, and heavy rainfalls which storm sewer systems cannot handle. Municipalities are also subject to legal actions by disgruntled property owners whose properties have suffered damage from the diversion of surface water onto their properties by municipal-constructed culverts or ditches.

It should be noted at the outset that establishing any cause of action for flood damage against a municipality is dependent upon the particular facts of each situation. What may be negligence or nuisance under one set of facts, may be successfully defended in another set of circumstances. That being said, there are a number of causes of action that municipalities routinely face in legal actions commenced against them for damage due to flooding. There are also a number of defences and immunities that municipalities have available to them to combat these claims, which are not available to individuals, corporations, or other non-public authority entities.

Negligence and Nuisance

Plaintiffs most often frame their allegations of civil liability against municipalities for flooding damage as being the result of negligence or as being nuisances. The difference between these two torts is worth noting.

The requirements for establishing negligence against a municipality are no different from what is required to establish negligence against other legal entities. A plaintiff must prove three basic elements to found an action in negligence:

* A duty of care owed by the municipality to the plaintiff.

* A breach by the municipality of the duty of care through conduct which fails to meet a reasonable standard of care, having regard to the nature and extent of the risk involved and how this risk could have been prevented.

* The breach of duty must cause reasonably foreseeable damage or harm to the plaintiff.

* If a plaintiff fails to prove any one of these elements, his claim of negligence must fail.

In contrast, a nuisance is the substantial and unreasonable interference with the use and enjoyment of land by its occupier or owner. Nuisance describes a type of harm that is suffered rather than, as with negligence, a kind of conduct that is forbidden (F.M. Linden, Canadian Tort Law. 5th ed; Toronto...