Responsibilities and Risk Management

Transcription

1 Responsibilities and Risk Management in a changing climate Legal Responsibility to Adapt Stormwater Management to Climate Change September 24, 2014 Understanding Low Impact Development Laura Zizzo

2 Organizations Response to Climate Change required mitigation required adaptation voluntary adaptation voluntary mitigation

3 Potential impacts Increasing precipitation Increased intensity of storms More frequent severe freezing/thawing cycles More frequent intense summer heat days Water level fluctuations Water quality and availability changes Increased costs effects on physical assets potential legal liability significant driver to adapt

4 Vulnerability Storm Water Systems Increased temperatures and evaporation Development leading to more runoff/less permeability Quality Flooding increasing contamination risks Critical Infrastructure Disruptions (due to flooding, severe weather) Water systems at risk Source: NRCan s From Impacts to Adaptation, Canada in a Changing Climate 2007

5 Insurer Bear own costs Plaintiff (harmed) Private parties (neighbours, designers, manufacturers) Governments

6 Finch Washout 2005 Photo courtesy of Jane-finch.com

7 Toronto Floods of Summer 2013 INSURABLE? Calgary Photo courtesy of Tom Ryaboi Photo courtesy of the Canadian Press

8 2013 IPCC Report indicated increase in extreme weather and heavy precipitation throughout the century. More to Come

9 Why adapt? Cost control and prudent planning Resilience Insurance costs Liability required adaptation voluntary adaptation

10 Responsibility to Adapt liability & climate Duties to provide services Accidents & municipalities The enterprising lawyer No clear set of legal requirements

11 Negligence Injury to person(s) or property because another has failed to take reasonable care Duty Standard of Care Causation, Foreseeability, Damages Possible Defendants: Owner or occupier (including government) Government entities Engineers, architects and other design professionals Contractors Special Test for Establishing Government Duty

12 Policy Decisions Protect Policy decisions generally immune from liability Must turn their minds failing to deliberate unlikely to be a policy decision Operational decisions can attract liability Limited defences available Other tort claims possible (nuisance, Rylands v. Fletcher, riparian rights)

13 Not just design at risk Inspection schemes can be both policy or operational based on facts of the case Inspections must be carried out non-negligently Negligent conduct of owner/occupier does not absolve municipality Permitting could be negligent Little case law, but some guidance that if authority knew or should have known there was a risk before issuing permit could be negligent Enforcement could be negligent Decision not to enforce a by-law could be negligent

14 Class Actions A real and present threat current cases include: City of Thunder Bay ($300M) City of Mississauga ($200M) Uses traditional causes of action (e.g. negligence) Efficient and improved access to justice Representative plaintiff for similarly situated, defined class, common issues decided together Certification often major hurdle to settlement Eg) McLaren v. Stratford Claimed $200M, settled for $7.7M (8 yrs after flood) Contingency fees

15 Farmers Insurance Class Action Chicago area April, 2013 flood Insurance Co s subrogated claims Municipal & local public entity defendants Referenced Chicago Climate Change Action Plan rainfall reasonably foreseeable in light of climate change models (D s aware) Complaint withdrawn issues remain valid Photo courtesy of David Mixner

16 Shared Responsibility Many actors involved in stormwater management and could be liable Municipalities Employees/contractors (can t delegate a duty) Consultants/Professional advisors (need to use professional judgment and reasonable standard of care) Community and individuals (may need to report and mitigate) Other orders of government Working with insurers

17 Emerging Trends New Civil and Contractual Liability Potential liability, lawsuits (from Insurance co s and others) pushing governments to adapt to climate change Regulatory Requirements Legislation to require utilities and other actors to assess and plan for climate adaptation? Shared Responsibility Governments, Employees/Contractors, Design Professionals/Consultants, Community/Individuals Availability of Insurance How to ensure affordability and products continue to be available? Asset Management Forward looking rather than historical based assessments needed

18 Risk minimization information accountability continuous review review existing facilities/codes/bylaws/policies/plans protect via integration into decision making

19 Take aways: Risk of common law liability significant. Can reduce risk through conscious policy decisions Must turn their minds failing to deliberate unlikely to be a policy decision Operational decisions can attract liability Limited defences available Other tort claims possible (nuisance, Rylands v. Fletcher, riparian rights) Actively assessing risks and coordinating best practices for stormwater management with fellow municipalities will be valuable in demonstrating both appropriate standard of care and that it was met

20 Status quo has changed processes Legislative delays irrelevance Business as usual is changing Infrastructure, planning and processes should include adaptation information technical capacity Processes should build defences and show diligence implementation & policy

21 Thank you 41-A Avenue Rd Toronto M5R 2G3