Water has recently been sneaking into homes and businesses in many municipalities due to the torrential rains that hit Quebec with the passage of Hurricane Debby. Then, last Friday, more water damage was caused in Montreal by a major water main break. It is possible for citizens whose basements and furniture were destroyed in this way to sue their municipality for compensation, but the task can be difficult. To sort out the state of the law on this type of legal action, The Dutyr spoke with an expert in municipal and environmental law, Me Jean-Sébastien Bergeron.
A citizen can sue a municipality, as he could do against any person or company that has caused him damage, establishes from the outset the specialized lawyer from the Simard Boivin Lemieux firm.
But this type of pursuit has certain peculiarities.
First, citizens who have suffered damage to their buildings and property must act quickly.
They must send a written notice to the city no later than 15 days after the incident or 15 days after noticing the damage. This is the time limit required by the City of Montreal and the City of Quebec, for example. However, this time limit is 60 days in other municipalities. And after that, if the municipality refuses to compensate, the citizen who wants to sue must file his action within six months. If he does not respect these deadlines, his action can be dismissed, without trial.
“It’s very short,” emphasizes the lawyer who practices in the Saguenay-Lac-Saint-Jean region.
Then, for the municipality to be ordered by a judge to pay compensation, it must have committed a fault, such as a failure to maintain its sewer or water system.
Normally, it is up to the person suing to prove this fault before the Court. But in the case of broken pipes or sewer backup, the law provides that the municipality is presumed to have committed a fault. However, it can rebut this presumption by demonstrating before the court that it acted as a “prudent and diligent” municipality, in particular by proving that it regularly inspected its sewer and drinking water supply network, and that it had a plan to repair the damaged pipes.
In a 2016 judgment, the Court of Appeal ruled that municipalities are not required to be perfect in maintaining their water supply networks and that, in a context of limited resources, it is normal for them to prioritize certain sections, depending on the condition and age of the pipes.
In court, the city benefits from the expertise of all its employees, its engineers and has access to its plans and its conduct investigations. To counter the municipality’s evidence, the citizen risks having to hire his own experts. “More costs,” says Me Bergeron.
That’s why it can be difficult for citizens to pursue, given their lack of financial resources, he added. A bit like David versus Goliath? Yes, the lawyer agrees.
He notes that legal actions by citizens against their municipalities are also “infrequent” because their damages are often reimbursed by their insurance.
Of course, their insurance policy still needs to protect them against this type of disaster, which is not always the case. And then, in some sectors, insurance companies flat out refuse to insure water damage, given the frequency of backups.
Sometimes, citizens in the same area come together to file a class action and share the costs of lawyers and experts, notes Me Bergeron. This was notably the case for citizens of the Rosemont district of Montreal, who suffered floods in 2009 and 2011. They finally reached an amicable agreement with the city in 2022.
“The strength of the group can be an advantage,” he says.
Municipalities are increasingly invoking “climate change” during torrential rains when they are blamed for sewer backups, notes the municipal law specialist. They can be exonerated if they demonstrate that it is an unforeseeable natural event, and that it is not “recurring.” However, they will not be able to get away with it in the case of a recently built network, which should have anticipated this type of natural event. There is still little case law on this subject, notes the lawyer, but it is likely that the law will eventually be clarified on this point.