It has been widely acknowledged that local governments and their infrastructure have been impacted by climate change, including increased liability risks. Recently enacted legislation requires local governments to adopt targets, policies, and actions to reduce greenhouse gas emissions in the community, which creates more regulatory requirements and resulting risks for local governments.

To defend regulatory liability claims, public entities such as local governments are reliant on the due diligence defence, which generally includes proof of a prevention system which is properly maintained and operated, includes regular training, and accounts for inevitable human error¹. Further, local governments are expected to have emergency response programs in place to limit harm to the environment and surrounding community.  Of note, a prior event, such as a flood event, increases the degree of care expected². The standard expected of public entities is illustrated in the following case examples:

In R v Gibsons, 2001 BCPC Sechelt 11797 a manhole overflowed, resulting in sewage being deposited into a storm drain, and ultimately water frequented by fish. The Town of Gibsons (“Gibsons”) was charged with depositing a deleterious substance into waters frequented by fish. The only issue at trial was whether Gibsons exercised due diligence.

It was acknowledged by the court that Gibsons had a robust prevention system that met a higher standard than municipalities in the region. However, Gibsons failed to have an adequate response strategy in the event of an overflow. The court held that there should have been a quicker response time, an adequate response plan, and employee training.

Gibsons had prior knowledge that if the manhole at this location were to overflow, sewage would inevitably enter the storm drain.  Gibsons also knew that the storm drain released into Shoal Channel, that this channel was frequented by fish, and that sewage was a deleterious substance. The knowledge of such a possibility combined with the cumulative effect of Gibson’s shortcomings resulted in the failure of Gibson’s due diligence defence.

In Canada (Fisheries and Oceans) v Ontario (Ministry of Transportation), 2014 ONSC 7071 a road washout occurred in the spring of 2008, which resulted in debris to be deposited into water frequented by fish. The Ontario Ministry of Transportation (the “Ministry”) made several unsuccessful attempts to drain the snow melt prior to the washout. The road washout was likely caused by this build-up and the associated rising water levels.

The court held that the following five factors should be considered when assessing a due diligence defence:

• The gravity of the potential harm;
• The likelihood of harm;
• The degree of knowledge or skill expected of the accused;
• The alternatives available; and
• The extent the accused could control the causal elements of the offence.

The court found that the Ministry did not have or did not apply the necessary expertise to assess the situation or recognize it as an emergency in a timely way. The Ministry should have taken steps to determine the cause of the blocked culvert before the situation deteriorated with the spring thaw. Overall, the Ministry lacked appropriate protocols and there were alternative strategies available to determine the cause of the rising water prior to the flood. 

As climate change and its impacts become increasingly apparent, it is critical for local governments to implement effective prevention and response strategies. This will ensure that the environment and communities are being adequately protected, while also providing a potential defence from liability.

Disclaimer: This is an overview article intended for general information only and should not be relied upon for legal advice.

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1. R v Island Industrial Chrome Co., 2002 BCPC 97 | ↩
2. Supra | ↩