In August, Burlington received more than 125 mm of rain – two months’ worth – in a mere three hours. It’s only the most recent example of intense rainfall in Ontario. I’ve already discussed in a blog this past summer, and in this year’s Greenhouse Gas (GHG) Annual Report, how municipalities across Ontario are experiencing more intense and frequent extreme weather events due to climate change. In the aftermath of these storms, communities, residents and businesses have been forced to clean up the damaging flood waters that inundate properties and infrastructure. I’ve also talked about how the insurance industry is stepping back from insuring flood-prone properties or is increasing rates while decreasing coverage for sewer back-up costs. As a result, some Ontario residents face higher insurance premiums, lower property values, and/or flooding damage that is not covered by their insurance companies. In certain cases, residents are looking beyond their insurer to recover flood-related costs; instead, they are launching lawsuits against the governments responsible for stormwater management.
Currently, there are several ongoing class action lawsuits with various levels of government named as defendants. In Thunder Bay, a large group of residents has joined a lawsuit against the city seeking $375 million in damages. This lawsuit alleges that, due to a failure to perform routine maintenance on the sewage treatment plant and to properly operate this plant during a 2012 storm, the City of Thunder Bay is responsible for flooding that affected thousands of homes. Similarly, the City of Mississauga is facing a class action lawsuit from residents that have endured repeated flooding and as a result, allege that they have experienced declines in property values. The lawsuit against Mississauga is also notable in that the province of Ontario – specifically the Ministry of the Environment and Climate Change – is named as a co-defendant, as is the Halton Region Conservation Authority and the Region of Peel.
These types of lawsuits against municipalities are not without precedent – in 2010, the City of Stratford paid $7.7 million to settle a class action lawsuit brought on by residents who were flooded in a 2002 storm. This sum is in addition to $1.3 million that Stratford paid to residents in emergency compensation after the flooding took place. The municipal costs of the lawsuit are being paid for by an increase in water, sewage, and garbage disposal rates for all Stratford residents.
Such lawsuits do not always come directly from residents – in the United States, an insurance company recently launched a lawsuit against almost 200 municipalities to reclaim costs it had paid out due to flooding damage, alleging that the municipalities hadn’t done enough to prevent flooding from storms. This case is particularly interesting as the insurance company also argued that municipalities should have known that climate change is altering and intensifying rainfall patterns and, as such, the communities should have been better prepared for this foreseeable risk. The lawsuit was later dropped since the company felt that sufficient attention had been brought to the issue and that it would be more productive to work collaboratively with the municipalities.
It is difficult to say whether the lawsuits in Ontario will succeed – class action lawsuits can take years to reach the courts and there are several criteria [.pdf] that must be met for a municipality to be found liable for damages. What is clear, however, is that the provincial and municipal governments cannot ignore the impacts of extreme weather and climate change on their respective responsibilities to regulate and deliver stormwater management without increasingly facing legal and financial consequences.
Municipalities deliver important services to their residents; the province supports and regulates the municipalities in performing these duties. As I pointed out recently, the province has its own obligations to ensure that Ontario has adequate stormwater management systems. We know that the status quo is no longer sufficient – only by proactive preparation can governments protect their communities, their residents and themselves.