Law Times

Page 10 November 20, 2017 • Law Times www.lawtimesnews.com Case law can be extremely dated Rising legal concerns around flooding BY DALE SMITH For Law Times W ith an increased number of f loods being seen in re- cent years, due in large part to climate change, questions about who is respon- sible for f lood mitigation is be- coming a pressing topic for envi- ronmental lawyers. Part of the problem, however, is that the case law in this area can be a century old in some cases, which adds to the com- plexity around dealing with these issues. Roxie Graystone, associate with Merovitz Potechin LLP in Ottawa, says there has been a "significant rise" in litigation re- lated to f looding. "[I]n Eastern Ontario, it's forecasted [there will be in- creased] precipitation by a dra- matic amount over the next 10 to 20 years as a result of climate change and, f lowing from that, the adaptation that goes with that," he says. The overland water is where insurance companies are seeing an increase in claims, an area where the Chartered Insurance Professional Society says many Canadians are not properly cov- ered. "If you look at any home- owner's policy, you will likely see many provisions dealing with water, as well as many exclu- sions," says Beth Quigley, part- ner with Connolly Obagi LLP in Ottawa. "Usually, the provisions addressing water damage are the most detailed and complicated parts of the policy, which few people understand." Quigley says insurers offer additional coverage as endorse- ments, which can address dif- ferent issues related to water infiltration and damage, but the fine print of those provisions may absolve the insurer from li- ability or cap it. While there are endorsements for ground water and sewer backup, most insur- ance doesn't deal with overland water. "The concept of purchas- ing overland water protection to deal with rising waters from heavy rainfall is still relatively new," says Quigley. "Insurers are just starting to offer this type of protection. I would think the insurance in- dustry would not be wading into this area if they did not think it was profitable." Graystone says changing cli- mate patterns raise questions about who is liable for the f lood- ing, like that which happened in Gatineau, Que. in the spring of 2017, where more than 500 homes were affected and the military was called in to help. "Is anyone liable for that?" asks Graystone. "Who controls those water- ways that impact the Ottawa River? A good review of the case law, however old it might be, and maybe some recent interpreta- tions of that would be a valuable article to have." Graystone points out that much of the case law around mitigating f loods is about 100 years old, and while some has seen some modern interpreta- tion, nothing has come before the Supreme Court of Canada in many years. One cornerstone of case law that exists to this day, he says, is Southern Canada Pow- er Co. Ltd. v. The King, [1936] SCR 4, 1936. In the ruling, the SCC af- firmed that anyone who inter- feres with a natural watercourse has a duty to see that the works they substitute for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall. "The familiarity [with this case law] isn't there, and that's more attributed to the fact that it hasn't been an issue," says Graystone. "The construct that has been there up until now has been sufficient. If I put in a road across a stream, I need to put a culvert in. This culvert's a good size, and it'll be good forever — well, those obligations are changing." With increasing water f lows, Graystone says, he sees a lot of cases where clients have been f looded out by a neighbour who has a culvert that was too small or where a municipality changed a culvert to deal with increased f lows and a private landowner has no regulation other than a common-law duty. Quigley notes that insurers are unlikely to offer coverage to high-risk areas, meaning most people in need of it would be unable to purchase it. As well, she points to a Chartered Insur- ance Professional Society report from 2016 that states that 70 per cent of Canadians believe they are covered for overland water when, in fact, they are not. That lack of coverage can mean waiting on government support, which also means that lawyers need to know which level of government is triggered by events. "The major challenge when you're a practitioner in this area is the co-ordination of various levels of authority," says Stanley Berger, partner with Fogler Ru- binoff LLP in Toronto. "The fed- eral government is tasked by the Emergency Management Act to provide assistance and their as- sistance is by jurisdiction subject to something being declared a provincial emergency." This would mean that un- less the provincial government declares a state of emergency, federal powers aren't triggered, meaning that they won't provide any financial or other required assistance. LT FOCUS Roxie Graystone says changing climate patterns raise questions about who is liable for the flooding. 9 TH ANNUAL ABORIGINAL LAW COURSE HIGHLIGHTS • Aboriginal and Consultation Case Law Review, including the Recent Supreme Court of Canada Decisions of Clyde River and Chippewas of the Thames dealing with Regulatory Boards and Consultation • Discussion on the Federal Governments "Principles Respecting the Government of Canada's Relationship with Indigenous Peoples" Boards and Consultation • Best Practices in Consultation • Best Practices for Implementing Agreements with Aboriginal Groups • Urban Indigenous Spaces – Toronto Indigenous District • UN Declaration on the Rights of Indigenous Peoples (UNDRIP) Impact on Resource Developments • Update on Northwest Territories LEXPERT EXECUTIVE PROFESSIONAL DEVELOPMENT PROGRAM Register online at www.lexpert.ca/Aboriginal-Law For questions and group rates, please contact: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: lexpert.ca/legal-programs • Email: lexpert.questions@thomsonreuters.com DATE & LOCATION Toronto: November 30, 2017 Vantage Venues 150 King St West, 27th Floor, Toronto, ON M5H 1J9 COURSE LEADER Thomas Isaac Cassels Brock & Blackwell LLP TORONTO • WEBINAR | NOVEMBER 30, 2017 Untitled-1 1 2017-11-16 1:48 PM

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