Anderson v Manitoba

The Court of Queen’s Bench of Manitoba released a decision on December 31, 2014 in <a href="" title="Anderson v. Manitoba"><i>Anderson et al. v. Manitoba et al.</i></a>, dismissing an application for certification of a class action proceeding related to flooding of reserve lands.

The plaintiffs were members of Pinaymootang First Nation, Little Saskatchewan First Nation, Lake St. Martin First Nation and Dauphin River First Nation, all four of which had reserve lands that were flooded in 2011. The proposed class action was brought against the Government of Manitoba, the Attorney General for Canada and the Manitoba Association of Native Firefighters Inc., alleging that the flooding was caused by Manitoba exercising its water control functions during the spring and summer of 2011, and that all three defendants failed to adequately provide evacuation and post-flood care to the plaintiffs. The plaintiffs claimed compensation for all personal losses which the flooding and evacuation caused them.

The first category of claims in this action involved alleged causes of action in nuisance, negligence, breach of treaty and breach of fiduciary duty, all based on the allegation that Manitoba caused the 2011 flooding on the four First Nations’ reserves through its operation of certain water flow control systems for the diversion of water from major urban centres in the province.

The Court rejected the allegation that Manitoba had breached a fiduciary duty to the plaintiffs on the basis that such a duty had not been made out in their pleadings. In the Court’s view, this was both an unprecedented application of fiduciary law and an unnecessary one since other remedies such as negligence and nuisance could adequately address compensation if Manitoba were to be found liable. With respect to the cause of action in nuisance, the Court held that there was no common issue that would make the claim suitable for a class action proceeding; each individual plaintiff had been impacted by the flooding to a different extent, and other potential causes for the flooding experienced by the plaintiffs, such as land topography, variances in rainfall, and snowdrift accumulation, differed greatly between them. Although the Court found that there were common issues in terms of negligence and breach of treaty rights that might be suitable for a class action lawsuit, it held that certifying only these two causes of action would mean that the more conventional cause of action of nuisance would be left outstanding and might need to be dealt with outside of the class action proceeding. In the circumstances, the Court held that a class action proceeding was not the preferable route for this litigation. Instead, it suggested other alternatives for the plaintiffs’ claims to be pursued, such as through a representative action.

The Court rejected various other claims from the plaintiffs, including claims against Canada and Manitoba based on their provision of evacuation services and post-flood care. It found that unless either level of government was found at fault or there was a statute requiring them to provide disaster relief, there was no cause of action against them. The Court also rejected the fiduciary duty claim against Canada on the basis that there was no specific Aboriginal interest or undertaking of discretionary control in relation to any such interest that might have otherwise given rise to a fiduciary duty such as was found in the Supreme Court of Canada’s Guerin decision. No other basis for a fiduciary duty was found for the federal government in the plaintiffs’ pleadings.

The Court found that the plaintiffs’ pleadings did disclose a potential cause of action in negligence against the Manitoba Association of Native Firefighters, but the circumstances of each plaintiff and the alleged impacts of the flooding on each of them were so different from one to the next that a class action was not the preferable route for this portion of the litigation either. 

Although this class action was not certified, the Court did note that the four First Nations whose members were represented in this action have initiated their own actions against Manitoba and Canada in which they are making many of the same allegations. The Court further noted that there have been negotiations between the First Nations and the federal and provincial governments aimed at setting up a plan for compensation and reconstruction following the 2011 flooding. Furthermore, Manitoba has provided individual members of the four First Nations with access to disaster relief compensation under Manitoba’s Emergency Measures Act, which does not require proof of any fault from any of the defendants involved in this litigation.