Government, Energy Corporation Can Be Sued In Class Action For Flood Damage Says Newfoundland Court

Flooding is a major issue for many Canadians, often causing severe damage and consequent economic harm. The federal government has warned that extreme flooding is the new reality of climate change,1 and the five most destructive floods in Canadian history have all occurred since 2010.2

A class action may provide flood victims with means of recovery in certain situations if fault can be attributed to a government entity. There may be government liability if an emergency response was undertaken negligently or if waterway infrastructure was negligently designed. However, establishing negligence on the part of government entities, like planning boards, municipalities, or energy corporations can be difficult, and few flooding cases have been permitted to proceed as class actions (i.e. have become "certified") in Canada.3

The recent Newfoundland Supreme Court decision Chiasson v Nalcor Energy4 provides useful guidance on factors to be taken into consideration by a court when determining whether common issues exist relating to negligence of government entities.

Claims against governments or related entities (planning boards, energy corporations) may be certifiable as class actions

In Chiasson, the Newfoundland Supreme Court certified a class action for flood victims against the provincial government and its energy corporation. There are three key takeaways from the decision for other prospective flood class actions:

Expert evidence including planning reports or research studies may be critical to establishing liability in situations of allegations against government entities; The boundaries defining the class should likely be limited to areas where there was a similar impact from the flood and a similar government response; and A class action can still be the preferable procedure for resolving the common issues even where an independent assessment finds that government entities were not at fault and the government already provided a relief fund for victims. The facts of Chiasson v Nalcor Energy

Mud Lake is a community on the Churchill River in Labrador. The river is the site of the Muskrat Falls Project, a construction project for a hydroelectric plant and transmission facilities, which is overseen by Nalco Energy, a crown corporation of Newfoundland.

On May 16, 2017, Mud Lake Road was under water, and the Province closed the road. Power was disconnected to impacted homes, and by May 17, residents of Mud Lake were evacuated by helicopter or...