A class action is seeking nearly $1 billion in damages for Oakville property owners whose land is now less usable, less valuable and at a higher risk of flooding due to “an alarming rate” of development in northern areas of the town.
The statement of claim is against Mayor Rob Burton, the towns of Oakville and Milton, the Region of Halton, Conservation Halton and the province of Ontario.
It argues that the approval of development north of Dundas Street has replaced permeable green space with impervious roads, roofs and patios, adding storm water and snow melt to creeks running toward Lake Ontario.
That has resulted in the expansion of the regulatory flood plain and increased the risk of flooding for downstream south Oakville residents.
Unable to build
The claim, filed by local law firm Will Davidson LLP, and former Oakville mayoral candidate and lawyer John McLaughlin, has not been tested in court, nor has a court certified the action as a class proceeding.
Gary Will, managing partner at Will Davidson LLP, said his firm was approached by Oakville landowners such as Erwin Banfi, representative plaintiff in the case.
Banfi purchased his Lees Lane home in 2003 and was told by the town that he could build an addition. But when he later applied for the permit, his application was denied and he was told the property was now within the flood plain.
Along with an increased risk of flooding, properties in the flood plain face building restrictions, as well as a potential loss in property value and insurability.
“People who are now in the flood plain can’t do what they thought they’d be able to do with their property,” explains Will.
‘Furtive shifting of risk,’ says claim
According to the claim, the link between upstream development and downstream flooding risk has been identified in numerous reports, but decision makers allowed urbanization because of the lucrative development charges, taxes and other fees it brought into their coffers.
It adds that the result has been “a furtive shifting of risk upon homeowners and/or their insurers” for flooding, damage and loss.
“The provincial laws are fairly clear,” says Will. “When you are making planning decisions, you can’t do it in a way that harms other individuals, in the event of a regional storm.”
The claim is seeking $900 million in damages for negligence, nuisance, and breach of fiduciary duty. It is also seeking an additional $90 million in punitive damages, and mitigation of the risk of flooding.
The defendants have 20 days to respond to the action.
Purely political move, says Burton
The Town of Oakville issued a statement saying it would defend itself against the claim, and that it has acted in good faith and within provincial policies allowing new growth and development.
“Protecting the public interest has always been a key priority of the town’s comprehensive planning review and approval process, and through the maintenance of its built infrastructure,” says the statement.
Burton, who described the action as “silly and frivolous” said he expects a court will quickly remove his name from the case.
“If you have any difficulty understanding that naming me was a purely political move by the people involved, you just have to consider that the equivalent people at the other organizations weren’t named,” he said. “The contrast is pretty blatant.”
He added that the town uses stormwater management techniques prescribed by provincial regulation, and that expansion of the flood plain is a result of improved science.
Links:
- Conservation Halton - Floodplain Mapping
- Town of Oakville - Types of Flooding