Casual legal: A flood of responsibility
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
By Jack Sorokin
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
With record-breaking rainfalls in June, many Albertans suffered flooding in their homes. Municipalities should understand that they have a duty to maintain drainage infrastructure in a reasonable state of repair to avoid liability for damages caused by flooding. When infrastructure is known by a municipality to be below the provincial standard, the municipality should also consider upgrading the infrastructure or imposing stricter inspection and maintenance requirements.
Under Section 532 of the Municipal Government Act (Alberta) (the “MGA”), a municipality is liable for damage caused by the municipality failing to maintain “…public works…in public space…” that are not “…kept in a reasonable state of repair by the municipality…”. Because drains, pipes, sewer lines, and other infrastructure designed to manage the flow of water are considered public works on public place, municipalities face a potential risk of liability under Section 532 for damage caused by the municipality failing to keep this infrastructure in a reasonable state of repair, in cases where they knew or ought to have known of those problems
There are certain defences to a municipality’s liability under Section 532 such as if the municipality proves that it took reasonable steps to prevent the disrepair from arising or if the person who brings the action does not notify the municipality of the event that gives rise to the action within 30 days after the occurrence of the event. Further, Section 530 of the MGA protects a municipality from liability for damage caused by a system of inspection and maintenance.
A recent decision from the Alberta King’s Bench, Legare v Acme (Village), 2023 ABKB 145 (“Legare”), considered the application of Section 532. The Court in Legare affirmed the trial judge’s decision that because of Section 532 of the MGA, the Village of Acme was liable for damages not covered by insurance for the reduction in the home’s value arising from a sewer back up. The sewer back up was caused partially by a sewer line running beneath the street that was four-inches as opposed to the provincial standard six-inches in diameter. In the Court’s view, the width of the sewer line made the original infrastructure in a state of disrepair. Thus, the municipality’s maintenance obligations were higher than usual, and the municipality was required to either upgrade the sewer line or implement more frequent inspections and maintenance. The Village did not meet this heightened duty, so the liability found by the trial judge under Section 532 was upheld.
We’re all hoping that the rain has slowed for the summer, but to be safe, municipalities that become aware of a state of disrepair in any drainage infrastructure should consider what reasonable steps they can take to address those issues before any further damage occurs.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1.800.661.7673 or email casuallegal [at] abmunis.ca (casuallegal[at]abmunis[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca (riskcontrol[at]abmunis[dot]ca), or call 310.MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
