BLOG : Extreme Flooding Class Actions. Time to Stop “Going With the Flow” and Demand that Society Pay

By Andrea Roulet

Finally, the spring rain has slowed down after regions in Quebec saw the second incident of severe spring flooding declared a state of emergency in the span of three years.[1] The heavy rainfall left an all too familiar result: thousands of Quebecers temporarily homeless, and for some, without any home to return to. Calculating the losses in monetary terms is a daunting task and reiterates the position of the Canadian government’s newly released report on climate change, Canada’s Changing Climate Report (CCCR): “extreme climate events frequently result in costly climate impacts.”[2]

To that effect, in hopes of obtaining compensation for the damages experienced this spring, a group of 500 residents from Sainte-Marthe-sur-le-lac have launched a class action against the City of Sainte-Marthe-sur-le-lac, the Deux-Montagnes Regional County Municipality and the Government of Quebec.[3]  This adds to a list of previous requests for authorization of a class action seeking compensation of flood damage.[4] Unfortunately, the majority of these previous requests have been unsuccessful.

In the Dupuis class action concerning the Richelieu floods the action was unsuccessful as it failed to convince the courts of common, identical and similar questions.[5] In addition, while the authorization hearing is not a hearing on the merits, Justice Lacoursière refuted some of the arguments that are outlined in the Sainte-Marthe-sur-le-lac request for authorization filed in May.  As such, the court refused the application of doctrine of neighbourhood disturbances citing that the damages were a natural result of an environmental phenomenon and not an action of the province deriving from their ownership over the waterway.[6] Unless there are a distinguishing set of circumstances that can avoid the above interpretation, it is unclear whether the residents of Sainte-Marthe-sur-le-lac will obtain an access to the justice system for their losses.

Considering these previous denials for authorization in combination with the rising confidence and consensus in the science surrounding the trending increase in the frequency and intensity of extreme climate events, the question of how the class action procedure will address environmental civil responsibility claims is becoming more urgent. Indeed, as the frequency and intensity of environmental catastrophes resulting in damage to a group of people increase[7], a rise in the number of requests for authorization of class actions seeking redress for damages caused by such events may reasonably be anticipated.

To elaborate on some of the science, the CCCR notes that Quebec’s normalized spring precipitation has increased over 20.9% between 1948 and 2012.[8] This degree of change in precipitation has a profound impact on the elements of the physical environment, such as river flow, groundwater increases, etc. which in turn have an impact on human society.[9] Also, the incident in Sainte-Marthe-sur-le-lac satisfies the Inter-Governmental Panel on Climate Change‘s definition of an extreme weather disaster. This is so as the precipitation experienced produced “widespread damage and cause(d) severe alterations in the normal functioning of communities or societies.”[10]  The CCCR concludes with medium confidence that these observed changes in precipitation in Canada are due in part to human influence.[11]

So, what does this all mean in terms of class actions launched for monetary redress of environmental harm caused by increased precipitation? If the past attempts to authorize class actions have been unsuccessful, who may be held responsible? How do we therefore reconcile the current difficulties for the victims of these events to obtain compensation with the potential frequency of these requests for authorization?

As the Supreme Court of Canada has repeated on numerous occasions, the class action procedure does not create or modify the substantive legal rights.[12] Therefore, while the class action is the legal procedure of choice, the legal rights of the Sainte-Marthe-sur-le-lac community are founded on the principles of civil extracontractual responsibility. Therefore, the community must demonstrate 1) fault; 2) a damage to others and 3) a direct link between the fault and the damage.[13]

Considering this, and the above findings on the human influence on increased precipitation (particularly in Quebec), perhaps it is reasonable to have Quebec and/or Canadian society joined as a defending party to assist in compensating the victims of this extreme climate event? The founding hypothesis behind this question being: If it is found with confidence that human activity, and therefore the accumulation of the activities of every member of society, is directly linked to increased precipitation and rising water levels (the fault) which resulted in property damage and property loss (the damage), then the three essential grounds for civil responsibility are united.

The above hypothesis would also assist in satisfying one of the three main objectives of the class action procedure, that of behaviour modification.[14]  Indeed, a public contribution to the compensation of the Sainte-Marthe-sur-le-lac community holds the general public accountable for the human influence associated with the rising probability of the extreme climate events. The potential mechanism would act as a financial reminder that all citizens have a role to play in the mitigation and adaptation to climate change. 

Many different mechanisms could be put into place for society to assist in the compensation of the Sainte-Marthe-sur-le-lac class group. On a macro level, a general tax could be imposed on products that are known with confidence to contribute the most greenhouse gases and therefore contribute to temperature and precipitation rise. Another idea could be to create a Fund, similar to the Fonds sur les actions collectives, where corporations would be required to produce a financial annual contribution in proportion to their contributions in greenhouse gases. The money collected could then be used as a pool to compensate and remedy the harms experienced for victims of extreme climate events.

As the CCCR emphasizes, the responses to Canada’s changing climate cannot only include mitigation – but must also focus on adaptation. The report defines adaptation as the “process of adjustment to actual or expected climate and its effects. In human systems, adaptation seeks to moderate or avoid harm or exploit beneficial opportunities. In some natural systems, human intervention may facilitate adjustment to expected climate and its effects.”[15]  Applying this definition to human conventions, such as the legal system and the class action procedure, would allow for legal remedies to meet the changing needs of Canadians in today’s changing climate. More particularly, adapting the legal system to join “society” as a defendant to class action procedures invoked for redress of harm caused by extreme climate events would assist to fill the need currently held by the residents of Sainte-Marthe-sur-le-lac and future needs of those who will also experience harm due to  the more frequent and the more intense extreme climate events.

[1] Globe and Mail. “Springtime flooding in Canada, what you need to know.” Globe and Mail. 25 April 2019, <https://www.theglobeandmail.com/canada/article-springtime-flooding-in-canada-what-you-need-to-know/>.

[2] Bush, E. and Lemmen, D.S., editors (2019): Canada’s Changing Climate Report; Government of Canada, Ottawa, ON. 444, p. 120. (“CCCR”).

[3] Richard Lauzon c. Muncipalité Régionale du Comté (MRC) de Deux-Montagnes, Ville de Sainte-Marthe-sur-le-lac, Procureur Général du Québec, C.S. 500-06-000998-191.

[4] Nigar c. Montréal (Ville), EYB 1988-78123 (C.S. Que); Larochelle v. Saint-Hubert (Ville), [1998] R.J.Q. 1083, 1998 CarswellQue 1818 (C.S. Que); Dicaire v. Chambly (Ville), 2000 CarswellQue 361; Dupuis c. Canada (Procureur général), 2012 QCCS 5704.

[5] Dupuis, supra note 3.

[6] Dupuis, supra note 3, para 210.

[7] See CCRP, supra note 2, p. 174.

[8] See CCRP, supra note 2, p. 158.

[9] See CCRP, supra note 2, p. 158.

[10] IPCC, 2012: Summary for Policymakers. In: Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation [Field, C.B., V. Barros, T.F. Stocker, D. Qin, D.J. Dokken, K.L. Ebi, M.D. Mastrandrea, K.J. Mach, G.-K. Plattner, S.K. Allen, M. Tignor, and P.M. Midgley (eds.)]. A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change. Cambridge University Press, Cambridge, UK, and New York, NY, USA, pp. 1-19.

[11] See CCRP, supra note 2, p. 159.

[12] Canadian Imperial Bank of Canada v Green, 2015 SCC 60, par. 62.

[13] Baudoin, Jean-Louis, Patrice Deslauriers et Benoit Moore, La Responsabilité Civile, Volume 1: Principes généraux, 8e édition. Éditions Yvons Blais: Cowansville, 2014,p. 30.

[14] Ontario Law Reform Commission, Report on Class Actions. Ministry of the Attorney General: Toronto, 1982. Accessed at: https://archive.org/details/reportonclassact01onta/page/146.

[15] CCCR, supra note 2, p. 13.

This content has been updated on July 30, 2019 at 3:48 pm.