Casual legal: Sewer backups and municipal liability

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made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.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 Sabrina Kuckertz 

Reynolds Mirth Richards Farmer LLP 

Alberta Municipalities Casual Legal Service Provider  

Sewer backups and flooding incidents are costly and disruptive, often involving property damage, public health concerns, and political pressure to prevent and take accountability for damage caused. 

Under s. 532(1) of the Municipal Government Act (“MGA”), municipalities are responsible for ensuring that every road or other public place that is subject to the municipality’s direction, control and management is kept in a reasonable state of repair. Courts have held that sewer systems fall under s. 532 of the MGA (see for e.g., Legare v Acme (Village), 2022 ABPC 54 (CanLII) at para 38, aff’d 2023 ABKB 145 (CanLII)) at para 14). 

If a municipality fails to perform its duty and knew or ought to have known of the state of repair, the municipality is liable for damages caused (see s. 532(2) and (6) of the MGA). 

Under s. 530 of the MGA, municipalities are exempted from liability for damage attributable to inspection and maintenance. However, Courts have held that s. 530 does not immunize municipalities from s. 532’s specific provision for liability for failing to keep roads and associated public works (i.e., sewers) in a reasonable state of repair. 

In sum, sewer backups and flooding incidents may result in municipal liability, particularly where the municipality knew or should have known of the state of repair. 

Aging infrastructure is increasingly stressed by severe weather, including heavy rainfall or rapid snowmelt. Therefore, to reduce risks of liability, it is best for a municipality to adopt proactive measures, which can include the following: 

• Maintain up-to-date engineering assessments, records of inspections, and maintenance actions for sewer systems;
• Track recurring problem areas and historical backup locations;
• Encourage residents to report flooding manholes or strange smells; and
• Implement policies and procedures to ensure that if issues surrounding sewer systems are reported or come to the municipality’s attention, there is an adequate and timely response. 

If you have any questions, please contact our municipal team for more information. 

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.