With more flooding in recent years, there has been a significant rise in litigation relating to flooding and this trend is expected to increase over the next 20 years as a result of climate change.
Insurance companies are seeing an increase in claims related to OVERLAND FLOODING. This is water that enters your home or property from a point at or above ground level caused by the overflow of a lake or river, or a heavy rain or rapid snow melt. Many insurance policies do not cover damage from overland flooding and most Canadians do not know whether or not they are covered for this increasingly significant risk.
Canadian laws related to flooding can be very old. The Supreme Court of Canada, in 1936 in Southern Canada Power Co. Ltd. v. The King, concluded that anyone, who interferes with a natural water course, has a duty to see that the works they substitute for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall. If your neighbour has put a culvert into a stream to redirect the water flow or to construct a road or bridge, that culvert must be sufficient to deal with the changes to the water flow caused by spring runoff and other events.
Now with climate change, there are far more cases in which people have been flooded out by a neighbour who has a culvert that was too small or cases in which a municipality updated a culvert and caused flooding to its citizens.
The problem with floods is that when things get wet, they rot and go moldy. Action must be taken immediately to preserve and protect property. Often, the property owner is left paying for the damages while searching for compensation elsewhere. Financial support from Government sources is slow and often complicated. Insurance may not cover the loss. Suing your neighbour is also expensive and ugly.
In short, not a satisfactory state of circumstances and it’s only going to get worse. Please review your insurance policies carefully to ensure you have the flood controls necessary in today’s world.
PS: If you have concerns about flooding, please consider the flood control products produced by our client, Layfield Canada Ltd.: www.layfieldgroup.com
Catherine E. Willson is Counsel in the law firm, Goldman Sloan Nash & Haber LLP, (willson@gsnh.com) a full service law firm in Toronto, Ontario (www.gsnh.com). This information deals with complex matters and may not apply to particular facts and circumstances. The information reflects laws and practices that are subject to change. For these reasons, this information should not be relied on as a substitute for specialized professional advice in connection with any particular matter.