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Residents of Muskoka launched a $900,000,000 class action against the Ontario Ministry of Natural Resources and Forestry (“MNRF”) on September 14, 2016. They allege damages related to “[MNRF’s] failure to adequately manage and lower the water levels of Lake Joseph, Lake Muskoka and Lake Rousseau… which resulted in significant property damage to the Plaintiff.”

The residents claim that the MNRF was at all times responsible for the management of the water levels through the development, implementation, enforcement and operation of the Muskoka River Water Management Plan (“the Plan”). The Plan establishes a “High Water Zone” beyond which damage may start to occur.

In early 2016, the claim alleges that Ontario, through the MNRF failed to follow the standards established by the Plan by allowing the “Normal Operating Range” and the “High Water Level” to be exceeded, causing flood situations on the Muskoka lakes in March and April 2016.

The claim alleges that Ontario owed a duty of care to the plaintiffs, including that it had an obligation to prevent or minimize flooding resulting from the operation of its water control works; its failure to do so was a breach of its statutory duty.

In news reports the MNRF is noted as saying that while sympathetic to those who suffered damage, severe weather conditions were out of its control, with a spring melt that was earlier and faster than normal this year. In a letter from then Minister Bill Mauro, the Ministry indicated that ministry dams were not designed to be flood control structures and don’t have the capacity to store or hold back water.

This type of claim will no doubt become more common as climate change causes more extreme weather events. Without insurance coverage, residents will look to provincial and municipal governments to cover losses if they fail to keep pace with the needed changes to manage their infrastructure and respond to these events.

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