Mud Lake, NL Flooding Class Action
Chiasson v. Nalcor Energy et al
Newfoundland & Labrador Supreme Court File: 2017 7673 CP
Wagners filed a proposed class action lawsuit in the Supreme Court of Newfoundland and Labrador on November 23, 2017 on behalf of the Plaintiff, John Chiasson, against Nalcor Energy and the Province of Newfoundland and Labrador seeking damages caused by rapidly rising water levels in the Churchill River on May 17, 2017.
The lawsuit alleges that the defendants were negligent in the design, engineering, planning, construction, commissioning, ownership, operation, maintenance, management of Nalcor’s hydro-electric generating project, upstream of Mud Lake. The lawsuit states that the Defendants failed to act responsibly to ensure that residents living in the affected areas were protected from property damage and other harm.
On July 11, 2019, the Honourable Justice Gillian D. Butler released her decision certifying the lawsuit as a class proceeding. A copy of the decision may be found under the Court Documents tab.
The Province of Newfoundland and Labrador appealed the certification decision to the Court of Appeal who allowed the appeal, removing the Province from the action. This means the class action remains certified against Nalcor Energy and will proceed to a common issues trial against that one Defendant. Dates for the trial are yet to be scheduled.
Updates & Latest Developments
On September 8, 2022, the Province of Newfoundland and Labrador publicly offered financial assistance to Permanent Residential Property Owner residents of Mud Lake for relocation as a result of the flooding of Mud Lake (the “Relocation Offer”).
As counsel for the certified Class, including property owner residents of Mud Lake, we were very surprised to hear of this offer which covers a portion of the damages sought in the class action on behalf of class members. As of December 19, 2022, we have not received any communication from the Province with respect to the Relocation Offer and have not received any documentation or information about it, notwithstanding repeated requests.
As counsel to the Class, we are concerned that the Province’s public offer of assistance directly to class members, outside of the class action, circumvents the courts and legal process, and encourages class members to make binding decisions in relation to their legal rights in a class proceeding, without the presence of legal counsel to act on their behalf.
If you are a Permanent Residential Property Owner of Mud Lake and a Class Member in the Mud Lake Flooding Class Action, we encourage you to advise the Province to direct all communications to us as your lawyers with respect to the Relocation Offer, so we can ensure your legal interests are protected and you can be fully informed of what rights you may be giving up by accepting the Relocation Offer. We also recommend that you do not sign or accept anything before we have been able to review and provide legal advice.
If you have any further questions or concerns, please contact us by telephone at 902-425-7330 or by email at [email protected].
You can also hear Mr. Wagner’s interview on CBC Radio on Labrador Morning with Janice Goudie regarding the Relocation Offer from September 14, 2022. If you are interested in listening to the interview, it can be found at https://www.cbc.ca/listen/live-radio/1-31-labrador-morning/clip/15936454-mud-lake-class-action-lawsuit-search-minerals-concerns at 20:55 of the recording.
The Class Action has been certified against Nalcor Energy, as per the Amended Certification Order. A Notice of Certification was distributed on February 7, 2022.
Per the Notice of Certification, Owner or Non-Owner Class Members as of May 17, 2017, are described below:
- Owner Class Members: An individual (other than the Defendant and its parent companies, affiliates or subsidiaries) who owned or co-owned real property within any of the three areas identified in red on Schedule “A” to the Certification Order.
- Non-Owner Class Members: An individual (other than the Defendant and its parent companies, affiliates or subsidiaries) who resided in any of the three areas identified in red on Schedule “A” to the Certification Order but who did not own real property located within any of the areas.
If you are a resident of Newfoundland and Labrador and wish to be excluded from the Class, you must opt-out of the class action by sending an Opt-Out Form to Wagners by mail or email on or before April 9, 2022. By opting out, you will exclude yourself from the benefit of any settlement or trial.
If you are a Class Member and as of January 19, 2022 reside outside of Newfoundland and Labrador, and wish to participate in the class action, you must opt in to the class action by delivering a completed Opt-In Form to Wagners by mail or email on or before April 9, 2022.
The Opt-Out and Opt-In forms can be found under the Documents section. Forms can be emailed to Wagners at [email protected].
In preparation for the common issues trial, Wagners will be receiving and going through a large number of documents from Nalcor. At the common issues trial, the focus will be on Nalcor, and whether it was negligent or committed the tort of nuisance.
If the common issues are resolved in favour of the Class, Class Members will need to advance an individual claim, and any remaining individual issues will be addressed in a manner to be determined by the Court.
The Court of Appeal of Newfoundland and Labrador has issued a decision upholding certification against Nalcor Energy, but allowing the Province of Newfoundland and Labrador’s appeal of certification against it.
This means the class action remains certified against Nalcor Energy and will now proceed ahead to a common issues trial against that one Defendant. Dates for the trial are still to be scheduled.
The decision may be viewed under the Documents section of this page.
The Newfoundland and Labrador Court of Appeal have now provided new dates for the hearing of the Defendants’ appeal that was originally scheduled to be heard on February 16 and 17, 2021 in St. John’s.
The appeal will now proceed by video conference on March 30 and 31, 2021.
The Defendants’ appeal that was scheduled to be heard by the Court of Appeal of Newfoundland and Labrador on February 16 and 17, 2021 in St. John’s has been adjourned the appeal as a result of the recent outbreak of Covid-19 in the Province.
The Court of Appeal will provide new dates for the hearing of the appeal and once received, we will post an update on this page to advise of the new dates.
On August 24, 2020, the Newfoundland and Labrador Court of Appeal rendered its decision with respect to the Defendant’s application for leave to appeal of the decision that certified the proceeding as a class action. Ultimately, the Defendants were granted the right to appeal parts of the certification of the class action. The appeal is scheduled to be heard by the Court of Appeal of Newfoundland and Labrador on February 16 and 17, 2021 in St. John’s, Newfoundland. It is typically several months before a decision is issued.
A copy of the Newfoundland and Labrador Court of Appeal’s Order, issued on August 28, 2020, with respect to the Defendants’ Applications for Leave to Appeal the Certification Order is available for viewing in the Documents section.
A copy of the Newfoundland and Labrador Court of Appeal’s decision with respect to the Defendants’ Applications for Leave to Appeal the Certification Order is available for viewing in the Documents section.
As you are aware, the Defendants filed an application to obtain leave of the Newfoundland and Labrador Court of Appeal to file an appeal of the decision that certified the proceeding as a class action.
The leave application was heard via teleconference by a panel of judges of the Court of Appeal on June 11, 2020. As is the usual practice, the panel has reserved their decision to consider the issues and arguments made by all parties. There is no timeframe for when the decision may be rendered; however we hope it will be released over the course of the next few months. We will update our website with the decision once it has been received and reviewed. If the Court of Appeal grants leave to the Defendants, dates will be scheduled for the hearing of the appeal most likely in 2021.
The implementation of the Court-approved notice plan advising of the certification of the proceeding as a class action is presently on hold until it is determined whether leave will be granted and, if granted, formal notice will remain on hold pending the outcome of the appeal of certification. If the Court of Appeal denies leave to the Defendants, then the implementation of the notice of certification will be carried out.
We will provide you with a further update as the matter progresses and once the decision regarding the application for leave to appeal has been released by the Court of Appeal.
Meanwhile, please do not hesitate to contact us if you have any questions by phoning us or emailing us at [email protected].
Certification was granted on July 11, 2019. A notice plan to inform class members about certification and what it means will be implemented once the certification order has been issued by the court. Trial dates have not yet been set, but the parties are now in the process of preparing for a trial.