COMMUNIQUE #3

TWIN LAKES BEACH FLOOD ACTION
COMMITTEE

COMMUNIQUE  #3

July 14^th, 2011

The Flood Action Committee met on Wednesday, July 13^th with Mr. BobPeters, a lawyer from the firm Fillmore Riley.
He generously gave three hours of his time to our committee to articulate a perspective that is somewhat different than the first opinion we received from Patrick Riley of Taylor McCaffrey.

 

Briefly, Mr. Peters also has over 30 years of experience in commercial litigation work and Admin Law Work (helping people
with relationships with Government) and representing people at various tribunals.  However, the most significant experience related to our situation at Twin is his personal battle with the Federal and Provincial Governments over the Flooding of his Personal Residence in the RM of Richot  (but just a few minutes from the Perimeter) in the 1997 Flood of The Century.  This case is sO strikingly similar to our plight.  Just like some of us, Mr. Peter’s, home was a total loss despite the enormous efforts he undertook to save it.  Just as In our situation the data he received to Flood Protect his home was constantly changing to the point where he ended up with a ten foot high sandbag dike surrounding  his 2,200 sq. ft. home and as well, having to  personally man two
pumps 24/7.  Unfortunately, it was all in vain.  The river breached the dike and flooded his home making it a total write off.
The value the Province put on his loss and the Certified Independent Appraisal he obtained for his property were significantly different.  He refused to budge from what he could provehis property was worth and after a significant amount of challenges and discussions the case ended up in at the  Land Value Appraisal Commission’s hands  (the place for final appeals) and the Commission upheld his Appraiser’s Market Value and deemed that the Province must compensate Mr. Peters for the Appraised
amount.  The costs of Appraisals and Legal Costs are always covered by the Government at this Appeal Process win or lose.

This brief outline of Mr. Peter’s Plight has very much to do with his advice to us
on how to proceed.  I will try to fit 3 hours of discussion and questions into a short point form paraphrasing of the evening.

 

 

In preparation for our meeting, Mr. Peters used the Lake Manitoba Flood Assistance Program –Part C—Lake Manitoba
Business, Principal and Non-Principal Residence Component—Terms and Conditions.  (this document is on
our Website. Programs www.twinlakesbeach.ca) as the guide for our discussion
and questions.  The premise being that this is the foundation of the Government’s Compensation Package to us.

Bob Peter’s
Recommendations:

• All
  of us need to individually register for this Program by the Sept. 1^st
  deadline by filling out the Notice of Claim from, the Intent to Claim form, and
  any others forms as prescribed by the Program Administrator.
• Representatives
  from ALMS need to meet with the Program Administrator to point out identified
  “anomalies” (exceptions) in order to tweek and streamline this Program so as to avoid a large number of
  appeals, delays and mid-stream adjustments to the Program.  ( I am in the process of speaking to the ALMS
  reps as we speak, to try to arrange a meeting with the writers of this Program and the Program Administrator, Mr.
  Bell).  Our major concern is the cap
  and designation of the terms seasonal
  and permanent residents causing
  discrepancy in compensation amounts and treatment under the Program.

Under
section 4 of the Program, “ Application”:  It is the committee’s concern that some of our members may have difficulty with this process because of Language issues, or just not feeling comfortable to deal with this process on their own because
of the complexity and high stakes involved.  Our committee strongly suggests that these individuals turn to family
members or close friends for assistance before they agree to anything.  If that is not practical than get assistance
from Social Services or retain your own counsel to help you through this process.  Our Committee CANNOT represent
you in this claims process because if we make an error or you are not satisfied with the outcome we could be held legally liable.  If the owner cannot sign the application because of health or other issues, a Power of Attorney is necessary for the
person signing on the owner’s behalf.

• Next, Copy the Lake Manitoba Flood Assistance
  Program Document (it is only 6 pages long) and study in thoroughly to get
  the best understanding of it and know the definitions within the Document and
  the Exceptions to the Program.  It is your responsibility to gain the best understanding of this Program that you
  can.  If you don’t understand something..contact them and get explanations from them, but every time someone
  in the Government tells you something you MUST keep dated documentation of what they said in a Personal Diary,  because
  as Mr. Peters says… “they are flying by the seats of their pants right now.   If you don’t have documentation with dates of what you’ve been told, then the government can and will deny they ever said that to you if challenged in court and it doesn’t suit them to admit to your claims.”  He personally experienced this in his own personal plight.
  And as soon as he brought out his Diary and gave the date or showed them a copy of an email that was sent to him then his claims were accepted over the Governments denials.  He also suggested if communiciating by email that when you get an answer or some information sent to you, you should always send a reply with your understanding of what they
  just sent you.  That way you are verifying and clarifying your understanding of the information being given to you.

 

• Finally, Ministerial Discretion and Appeals: 

The Minister, and we are assuming they mean Ms. Melnick, or maybe Selinger, (we
have to clarify that yet), has the absolute discretion to determine any payments under this program notwithstanding
the Program Terms and Conditions.   In other words, for those of us who don’t fit neatly into the Program’s Parameters or Box, the Minister has the absolute right to make individual exceptions so that they will be treated fairly.  This program will
satisfy most of us, once we tweek it a bit, but there are some owners who fall
outside the box or parameters of the Program and they will need to be treated individually respecting the exceptions
that exist for them.

• Appeals:
  The “ Minister” will establish an appeal committee to deal with
  objections or complaints respecting the making of, or the failure or refusal to
  make payment under this program.  Appeals
  must be received by MARCH 15^th, 2012!!! The  flood event will obviously not be over by
  then because the impact of spring break-up will be starting to take its toll
  around then or shortly after.  So our
  committee and ALMS need to do some work on that. However, we urge all of you to
  register for this Program before the Sept 1^st Deadline because we
  anticipate that parts of this Programs Terms and Conditions may change as the
  Flood Event Fully Manifests itself.

The Last Course of Action in the Appeal Process back in 1997 was the Land Value Appraisal Commission.  This is where Mr. Peter’s case finally ended up because his Market Value and the Provinces offer were significantly
different.  At this arena, his costs were covered..win or lose. We are trying to clarify the appeals process for 2011 to
determine what role, if any, Land Value Appraisal Commission will have.

 

• The Second Option we have if we are still not satisfied is to File Suit…Probably
  Class Action:  Under the Following Tortes:  1. Neglegence, 2. Nusiance 3. Rylands vs. Fletcher.

1. Negligence:
   We would have to establish that the Province had a DUTY of care, and
   they breached that DUTY, and damages occurred because of that BREACH.
2. 2.      Nuisance: We need to proof that the
   Province intentionally or otherwise diverted water and damaged our Property
   (Buildings and Land) and disrupted our way of life.
3. Rylands vs Fletcher:  A
   precedent setting case often used in court. Fletcher brought something to his property, it escaped and caused damage
   to Ryland’s property.  In this example the Government would be Fletcher, the property owners would be Rylands.  Fletcher, being the Government, let the water escape and caused damage to Rylands (us).
   Rylands prevailed in his suit.  Obviously there is more to it than just this but that is the jist of
   precedence. (you might be able to Google this case and read more.)

 

This will be a long , cumbersome and costly alternative but it might be something we will need to do if the above Program
Falls short or doesn’t seem to make sense to us if the other conditions of what we WANT are not implemented..ie.  I go
back now to the intial Emergency Meeting of our Association in the jam packed Charleswood Legion where the membership clearly stated that they wanted to STAY but only if:

1. Lake level brought down to 810ft asl. and maintained there and to re-visit  the LMRCC
   recommendations and make adjustment to the Operating Levels of Lake Manitoba because of the drastic change in the shoreline geography leading up to and including the May 31^st event.
2. An accessible solid road that also acts as a dike to protect us from The Lake Francis Marsh.  This road/ dike should be built to the same specs that the Current Dikes  in St. Laurent are being built to.
3. The Province,AND  NOT individual land owners will be responsible for the engineering ,construction snf maintenance of a Protective Shoreline Defense System that will protect Land and Property Owners from the Surges of Lake Manitoba produced by wind set-up and wave action.

IF…………..
WE CANNOT  HAVE A DIALOGUE AND A GUARANTEE THAT THESE THREE CONDITIONS WILL BE MET…..THEN WHAT IS THE USE OF GETTING COMPENSATION, SPENDING THE MONEY ON REPAIRS, OR MOVING AND UPGRADING
PROPERTIES JUST TO SEE EVERYTHING DESTROYED AGAIN IN THE NEXT STORM????

The Programs keep referring to Flood Proofing and the dollars available for it, but what if you flood proof and your neighbor
doesn’t…your efforts will be compromised. That is why we feel the Government must be in charge of the Shoreline
Defense System and clearly stipulate that Land and Property Owners cannot tamper with it or make alterations to it without first getting written permission from the authority in charge of the Shoreline Defense System.

That briefly sums up our discussions of Wed. June 13^th.

 

ACTION TO BE TAKEN AS A RESULT OF THIS MEETING:

1. Dennis
   will contact ALMS reps and inform them of this second piece of Legal Advice and
   ask them to participate in a face to face meeting with the writers of the Lake Manitoba Flood Assistance Program and
   the Appeals administrator to discuss and suggest improvements to the Program.
2. Dennis
   will proceed to make the necessary contacts and meet with the above mentioned.
3. Dennis
   will communicate to the Membership the results of the meeting help on Wed. July
   13^th via a Communique emailed to the Membership and also posted on our WEBSITE.

Other News:

Our Committee will be presenting to ALMS on July 20 Plans to stage another RALLY at
the Legislature with the THEME …WE WANT 810ft asl.  This is to impress upon Water Stewardship
that we are a unified voice.  That Water Stewardship can no longer say that we are divided on the issue of Lake Levels
as we once were.  Because of all the events that have transpired since the LMRCC final report, we now realize that
the operating range of  Lake Manitoba MUST be adjusted and we are all in Agreement that 810ft asl.  is the new target and the lake should be maintained as closely t as possible to that level, just as they have maintained it at 812ft asl for all theses years and thus causing the painful side effect of the destuction of Pristine Beaches along the shores of Lake Manitoba and the
destruction of Millions of Dollars worth of Land and Property…even their own Provincial Campground at St. Ambroise.

 

This concludes my report for now……Below is the Links to the Lake Manitoba Financial Assistance Program Read it Carefully and Thoroughly.  ESPECIALLY PART C!!!!!!!!!!