- Our second meeting was held Monday, June 20, 2011
- The major agenda item was discussion with two lawyers from Taylor McCaffray. The lawyers were Patrick Riley and Darryl Kreel. Patrick took the lead at the mtg. while Darryl took notes and added commentary as well.
- PATRICK RILEY: ADVICE AND REASONING
- Has sued the Provincial Government many times over his 30 years of experience
- Represented 22 families who were flooded out in 1997 south of the Floodway Gates
- Plaintiffs were not completely satisfied by the award granted by the courts. They received about 75% what they were asking for which was considerably higher than what the gov. was initially offering. They won the award because there was no statute in place that protected the government from all liability when acting in relation to use of the Floodway. . He suspects the same is true for the Portage Diversion.
- His advice is that Negotiations with the Government produces a better result than a Law Suit.
- Our immediate action is to get leverage on the Gov. If our solution is to drain Lake Manitoba with another channel we first need to check with First Nations to see how they feel about getting flooded. There is talk that Little Sask and Lake St. Martins want to be relocated. Garry Gruebert will speak with First Nations.
- He advised we stay united…better to have many plaintiffs than just a few. Power in numbers. This is where ALMS comes in along with First Nations and other stakeholders around the lake.
- Need to acquire external expert to challenge Water Stewardships claims
- There are really two separate courses of action.
- based on the government’s own financial relief plan
- a claim based on the law of Nuisance(a flood from a neighbors’ property is a nuisance to you.
- Under the Nuisance claim, there is no difference between a permanent resident and a seasonal resident because the right runs with ownership of the property not based on how often it’s used.
- Nuisance is preferable as it is a legally tested and accepted claim. Also Nuisance is a almost a strict liability standard which means that you only have to prove the act was done, not that any harm was intended.
- This is different than Negligence where you have some standard of both behavior and intention you may need to meet.
- Basing a claim on the theory the Government expropriated the property for use to retain water is innovative, it would take time to legally test and this could drag the process out.
- Injunctive relief will likely not be granted by the courts to either stop use of the Portage Diversion or to compel the construction of a new channel(a mandatory injunction)
- When determining the size and type of claim to make for Nuisance, each property owner should include all elements of damages suffered and not limit themselves to just the market value of the property.
- As a remedy, forcing the Government to find a replacement location similar to Twin Beaches is not very unlikely.
- QUESTIONS:
- Does the acceptance of compensation bar individuals from advancing further legal actions?: ANSWER: Generally No. However if the Government asks for a “release” which releases the government from all future claims, then if you sign that release in exchange for the compensation, then you may indeed be prevented from advancing future legal action.
- Is the idea of a “test case’ where one owner’s case acts as a precedent for others a worthwhile approach? Answer: no not really. More strength in numbers and can have multiple parties on one claim. In the Red River Floodway case all 22 families were plaintiffs on one claim.
- Is a class action suit a good idea? Answer: no, not really for the same reasons as the test case and there are additional hurdles you have to meet in a class action that you don’t have in a regular lawsuit.
- If the claims are due in Sept. and damage occurs in Oct or Nov. while claim processing is taking place and we are not able to complete flood proofing, can we get reassessment of damages? Answer: Yes. There is a 2 yr limitations period based on the common law remedy of Nuisance. However, when that limitation period starts may depend on how you frame the claim for damages. For example, if you say the damage started in the fall of 2010, then your limitation period may run 2 years from that start date versus the date of the latest storm of May 31, 2011.
- Will capital gains be an issue for cottagers who take the compensation pkg. of 90,000? ANSWER: No capital gains tax on compensation money used to improve or repair damaged bldgs. Capital Gains will apply if you take a Buy-out
- If we were to retain you as legal counsel what is your fee? ANSWER: Patrick $350/hr. Darryl $250/hr. Or alternative (but not what they like to do ) anywhere from 25%-33% of the final award. This could be lowered proportionally depending on the number of plaintiffs in the legal action.
SIDE NOTE:
As you can imagine one hour goes very quickly when discussing legal actions. I have tried to paraphrase as accurately as I could so you get the gist of the discussion. They gave us more than a Free Hour. The committee was very impressed by their knowledge and their approach.
ACTIONS:
- Dennis Turek WILL PRESENT THIS INFORMATION TO THE ALMS COMMITTEE ON JUNE 27TH. HOPEFULLY THEY WILL COME ON BOARD TO FURTHER PURSUE A JOINT LEGAL ACTION WITH US.
- Dennis Turek will ask the TWBA executive for authority to spend money—up to some amount say $5,000, for the purpose of obtaining a written legal opinion. This opinion will outline the general law and strategies related to these circumstances that will be applicable to the general membership as a whole.
- Dennis Turek will ask the TWBA executive for authority to spend money—up to some amount say $5,000 for an opinion from a recognized expert in hydrology on, among other things, how much of the Lake Manitoba levels are related to the actions of the Government in both bringing water into and allowing water out of Lake Manitoba.MATT LAND AND MARIO LEBar WILL CONTACT ANOTHER LAW FIRM TO GET A SECOND OPINION. (We can’t go with Thompson, Dorfman, & Sweatman because of a conflict of interest having represented the Province in the past
- Fred Pisclevish will contact Dennis Andrews, Twin Lake Beach Cottage owner, who has worked and has knowledge about water issues on Lake Manitoba..to see who could be our independent expert that could challenge Water Stewardship.
- PRESENT REPORT AT THE JULY 10TH AGM
- Dennis Turek will ask the question at the ALMS mtg on June 27 of brainstorming possible ways to keep our plight alive in the Media because it is starting to die. Things we considered …Large gathering (Rally) at the Diversion..Large Gathering (Rally) on the Hwy near Fairford or the Narrows because of heavier traffic and greater visibility.
NEXT MTG. TENTATIVELY SCHEDULED FOR JUNE 29 (DEPENDANT ON LAWYER AVAILABILITY)