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NUISANCE - Liability - Flooding caused by dam 

Wednesday, July 21, 2021 @ 5:33 AM  


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Appeal by the Province and Nalcor Energy from a certification order. Residents of Mud Lake in Labrador were evacuated from their properties because of flooding on the Churchill River. Nalcor operated a dam near the river. The class action alleged negligence and nuisance against the appellants. Nalcor disputed the claim in nuisance only. The Province argued it was not liable for the acts or omissions of Nalcor, a Crown corporation and an agent of the Crown. The claim in negligence against the Province was based on the Province’s policies concerning the project and on the statutory scheme in the Water Resources Act. The plaintiffs relied on the Act to ground a duty of care owed to them by the Province based on the Province’s oversight mandate. The nuisance claim against the Province alleged the damage to their property was caused by flooding because the Province did not take adequate measures or safeguards to prevent the potential of flooding. In the nuisance claim against Nalcor, the plaintiffs alleged no adequate measures or safeguards were taken by Nalcor to implement any effective or appropriate methods to prevent the potential of flooding. The Class was claiming that Nalcor’s actions or failure to take preventive actions caused them substantial and unreasonable interference with the use and enjoyment of their property. 

HELD: Appeal by Province allowed. Appeal by Nalcor dismissed. The facts as pleaded did not disclose the necessary relationship of proximity between the Province and the class to establish a prima facie duty of care. While the Water Resources Act gave the Minister authority to direct an owner or operator of waterworks to take action such as inspect, submit a report, or make changes to the undertaking, this did not amount to the imposition of a duty of care on the Minister to take actions that had been imposed on Nalcor and for which Nalcor was responsible. There was no close and direct relationship that would support a conclusion that it would be just and fair to impose a duty of care on the Province in the circumstances. The Act specifically imposed responsibility on the owner, operator or person responsible for the construction, maintenance and operation of waterworks for which a permit had been granted. There was no possibility of success in a claim in nuisance against the Province. The Crown was not subject to proceedings where a cause of action was enforceable against a Crown corporation such as Nalcor. Under the Act, Nalcor was made responsible for the maintenance and operation of the dam project. That responsibility included identifying and addressing situations that might result in damage to property located downstream from the project. At this stage, it could not be determined that the nuisance claim against Nalcor had no chance of success. Whether the claim could be proven, including the question of causation, was a matter for trial.

Newfoundland and Labrador v. Chiasson, [2021] N.J. No. 173, Newfoundland and Labrador Court of Appeal, D.E. Fry C.J.N.L. and B.G. Welsh and W.H. Goodridge JJ.A., June 15, 2021. Digest No. TLD-July192021006