As climate change increases the intensity of storms, and as
insurers become more reluctant to insure basements that are known to flood, we notice
more and more lawsuits against municipalities for basement floods. Municipalities generally
benefit from statutory immunities against lawsuits in nuisance for
water escaping from lawfully operated sewage works. However, they
enjoy no such protection against claims in negligence.
One key feature of negligence claims is foreseeability. In
Southern Ontario, the August 2005 storm created intense flooding,
which put many municipalities on notice of flaws in their drainage
systems. Municipalities have responded to this threat with varying
degrees of urgency. and the courts have responded with varying
degrees of sympathy.
For example, In Lissack v. Toronto (City), 2008
CarswellOnt 8281 (Ont Superior Court of Justice), the plaintiff
succeeded in a negligence claim against the City following a storm
sewer backup that flooded his basement. The storm sewers on the
plaintiff's property had been built around 1961 and designed,
in accordance with industry standards at the time, to accommodate
2-year storms. Following the 100-year storm in August 2005, as a
result of which many basements – including the
plaintiff's – were flooded, the City set up a Work
Plan to alleviate the backup problem. The City divided its area
into 31 chronic areas that required attention. In 2006, before the
Plan was implemented, the plaintiff's basement flooded again.
The court awarded compensation for this second flood, concluding
that the City had failed to implement the plan quickly enough.
However, a similar claim was rejected on appeal in Salamon v.
Toronto, 2011 ONSC 4192, the City successfully
defended a negligence claim for basement flooding caused by a
sanitary sewer backup. The claim was brought in negligence,
because, like most municipalities, the City is immune from actions
in nuisance for sewer backup (see s. 393 of City of Toronto
The plaintiffs had won, at trial, on the ground of duty to warn.
Unfortunately, the plantiff had not pleaded this cause of action,
so the appeal court overturned this part of the judgment.
In any event, positive duties to warn are exceptional, and while
defendant conceded duty "to warn of harm that is
foreseeable", no basis existed to find a positive duty on the
City "to warn [plaintiffs] about ways to manage storm water or
avoid sewer backups"
Although the City has a duty to maintain the sewer, it had met
that duty by adopting and implementing a work plan with a
seven-year cycle for investigations of sewers, starting with a
four-year period for assessing areas of chronic sewer flooding. The
work plan was a "policy decision" and "there has
been activity undertaken in compliance with the time frames for
sewer inspection adopted by [City] in the body of the work
plan". As the sewer on plaintiffs' street was last flushed
in 2005, defendant "was compliant with the policy decision in
the Work Plan to investigate on a seven-year cycle".
Accordingly, the City used reasonable care in the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).