Shellmouth Dam Compensation Regulation

Shellmouth Dam Compensation Regulation, M.R. 14/2011 The Water Resources Administration Act , C.C.S.M. c. W70 Regulation 14/2011 Registered February 18, 2011 bilingual version (HTML) Table of Contents Section 1 Definitions COMPENSATION PROGRAM 1.1 Minister to commence compensation program 1.2 Public notice of end of artificial flooding and claim period 1.3 How public notice is given 1.4 Inundation maps CLAIMS AND CLAIMS PROCESS 1.5 Claims for losses during artificial flooding period 1.6 No claims outside artificial flooding period 2 Compensation application procedure 3 Claimant may be represented by agent 4 EMO agreements with third parties CLAIM SCREENING AND INFORMATION GATHERING 5 Initial review and screening of claims by EMO 6 EMO to gather information ASSESSMENT OF CLAIMS, COMPENSATION DECISIONS AND PAYMENT 7 Assessment of claim 8 Valuation of property damage 9 Valuation of economic loss 9.1 Reduction of compensation 10 Compensation decision and payment of compensation APPEALS 11 Appeal to the Disaster Assistance Appeal Board COMING INTO FORCE 12 Coming into force Definitions 1 The following definitions apply in this regulation. "Act" means The Water Resources Administration Act . («  Loi  ») "claimant" means a person who makes a claim under section 1.5. (« requérant ») "compensation" means compensation within the meaning of sections 12.1 to 12.6 of the Act. (« indemnisation ») "Emergency Management Organization" means the Manitoba Emergency Management Organization continued under The Emergency Measures Act . (« Organisation de gestion des situations d'urgence ») "period of artificial flooding" means the time period starting from the date published in a notice issued under section 1.1 as the date the artificial flooding begins and ending on the date published in a notice issued under section 1.2 as the date the artificial flooding ends. (« période d'inondation artificielle ») "preliminary estimate of damage or loss" means an estimate of the extent and duration of flooding, a preliminary list of damaged property and identification of the type of economic loss that has occurred or is expected to occur as a result of the flooding. (« estimation provisoire des dommages ou de la perte ») "repair cost" means the cost to repair or restore damaged real or personal property to a condition most closely resembling its pre-damage condition using materials of a similar kind, quality and construction without deducting for depreciation. (« coût de réparation ») "replacement cost" means the cost to replace damaged real or personal property with property of a similar kind, quality and construction without deducting for depreciation. (« coût de remplacement ») "schedule of loss" means a detailed formal statement of property damage or economic loss by a claimant for the purpose of demonstrating the amount of the claimant's property damage or economic loss caused by artificial flooding. (« tableau des pertes ») "winter period" means the period beginning on November 1 of a year and ending on the earlier of (a) March 31 of the following year; or (b) the day in the following year in which inflow into the Shellmouth Dam reservoir first exceeds 42.48 m 3 /second (1,500 ft 3 /second). (« période d'hiver ») M.R. 54/2024 COMPENSATION PROGRAM Minister to commence compensation program 1.1(1) Subject to subsection (4), the minister must commence a compensation program in accordance with subsection (2) when (a) artificial flooding occurs in Manitoba as a result of the operation of the Shellmouth Dam; and (b) the minister believes that artificial flooding may cause property damage or economic loss. 1.1(2) To commence the compensation program, the minister must issue a public notice that claims for compensation in relation to the artificial flooding may be filed with the Emergency Management Organization. 1.1(3) The public notice must include the following: (a) the date the artificial flooding began; (b) information about how to file a claim for compensation; (c) a statement that another public notice will be issued advising when the artificial flooding has ended and fixing a date by which claims for compensation in relation to the artificial flooding must be filed with the Emergency Management Organization; (d) a statement about how to access inundation maps published under section 1.4. 1.1(4) The minister is not required to commence a compensation program in respect of artificial flooding that occurs during a winter period unless the Shellmouth Dam was operated during that winter period in a manner inconsistent with any operating guidelines approved for the operation of the dam during winter periods. M.R. 54/2024 Public notice of end of artificial flooding and claim period 1.2(1) When, in the minister's opinion, the artificial flooding that led to the commencement of a compensation program under section 1.1 has ended, the minister must issue a public notice (a) stating the date the artificial flooding ended; and (b) fixing the date by which claims for compensation in relation to the artificial flooding must be filed with the Emergency Management Organization. 1.2(2) The date referred to in clause (1)⁠(b) must be at least 20 days after the date the artificial flooding ends. M.R. 54/2024 How public notice is given 1.3 A public notice under section 1.1 or 1.2 must be issued (a) by posting the notice on a government website; (b) by publishing the notice in a newspaper with general circulation in the area of the province affected by the artificial flooding; and (c) in any other manner the minister considers appropriate. M.R. 54/2024 Inundation maps 1.4 During a period of artificial flooding, the minister must publish one or more inundation maps showing the maximum extent of the flooding. M.R. 54/2024 CLAIMS AND CLAIMS PROCESS Claims for losses during artificial flooding period 1.5(1) After a compensation program has been commenced by the minister, a person who is of the opinion they have suffered or will suffer property damage or economic loss as a result of artificial flooding occurring during the artificial flooding period may make a claim for compensation. 1.5(2) A claim must be made by submitting to the Emergency Management Organization (a) a compensation application using a form supplied or approved by the Emergency Management Organization; and (b) a preliminary estimate of damage or loss. 1.5(3) The person making the claim must submit the compensation application and the preliminary estimate of damage or loss on or before the date fixed in the public notice issued under section 1.2. 1.5(4) The Emergency Management Organization may accept the compensation application and preliminary estimate of damage or loss after the date fixed in the public notice issued under section 1.2 if the person submitting the claim satisfies the Emergency Management Organization that extenuating circumstances prevented the person from submitting the documents on time. M.R. 54/2024 No claims outside artificial flooding period 1.6 A person is not entitled to make a claim in relation to property damage or economic loss suffered as a result of flooding that occurs outside of an artificial flooding period. M.R. 54/2024 Compensation application procedure 2(1) A claimant must (a) [repealed] M.R. 54/2024 ; (b) in the case of a claim for damage to real or personal property, submit the documentation or information the Emergency Management Organization requires to show (i) that the requirements of subsection 12.1(2) (eligible property) of the Act are satisfied, and (ii) that subsection 12.1(4) (Water Resources Administration Act orders) of the Act does not apply in respect of any of the damaged property; (c) in the case of a claim for economic loss, submit the documentation or information the Emergency Management Organization requires to show (i) that the requirements of subsection 12.1(3) (eligible economic loss) of the Act are satisfied, and (ii) that subsection 12.1(5) (Water Resources Administration Act orders) of the Act does not apply in respect of the loss; (d) submit a schedule of loss to the Emergency Management Organization (i) within 60 days after the inspection referred to in clause 6(1)⁠(a) is conducted or within any further period specified by the Emergency Management Organization; or (ii) within the period specified by the Emergency Management Organization if, in accordance with subsection 6(2), no inspection is conducted. (e) whenever required by the Emergency Management Organization, provide any additional documentation or information it considers necessary to assess the value of the damage or loss or to determine any matter it considers relevant to the claim, including but not limited to any of the matters set out in clauses 12.2(2)⁠(a), (b), (c), (e) or (f) of the Act. 2(2) Without limiting the generality of clause (1)⁠(e), a claimant who claims compensation for economic loss must provide the Emergency Management Organization with sufficient financial information to enable it to assess the amount of lost wages, salary or business income, including but not limited to any of the following: (a) documentary evidence of wages or salary earned in previous periods comparable to the period of lost wages or salary caused by the artificial flooding and of actual wages or salary earned during the period of loss; (b) independent confirmation of employment and expected earnings during the period of lost wages or salary; (c) tax returns; (d) financial statements showing business revenue and expenses for (i) previous fiscal periods comparable to the period of lost business income caused by the artificial flooding, (ii) the period of lost business income caused by the artificial flooding, and (iii) any later fiscal period the Emergency Management Organization requires for comparison purposes; (e) independent confirmation of expected sources of business revenue during the period of lost business income; (f) documentary evidence of business expenses continuing during the period of lost business income. 2(3) and (4) [Repealed] M.R. 54/2024 M.R. 54/2024 Claimant may be represented by agent 3(1) Subject to subsection (2), a claimant may authorize an agent to prepare and submit the claimant's compensation claim, and the Emergency Management Organization may deal with the agent for all purposes in relation to the claim. 3(2) The Emergency Management Organization may require such proof of the agent's authority as it considers necessary. M.R. 54/2024 EMO agreements with third parties 4 For certainty, an agreement under subsection 12.2(3) of the Act may authorize the qualified person or organization to perform any of the functions of the Emergency Management Organization under sections 2 to 10 of this regulation. M.R. 54/2024 CLAIM SCREENING AND INFORMATION GATHERING Initial review and screening of claims by EMO 5(1) After the Emergency Management Organization receives a compensation application, it must promptly conduct an initial review of the claim. 5(2) After conducting the initial review, the Emergency Management Organization must dismiss the claim if it determines that artificial flooding that occurred during the period of artificial flooding is not the cause of the damage or loss being claimed. 5(3) If, after conducting the initial review, the Emergency Management Organization determines that artificial flooding that occurred during the period of artificial flooding is not the cause of a specific portion of the damage or loss being claimed, the Emergency Management Organization must dismiss that portion of the claim. M.R. 54/2024 EMO to gather information 6(1) If a claim is not dismissed under section 5, the Emergency Management Organization must (a) promptly, and in the presence of the claimant, conduct an inspection of the flooded area and damaged property identified in the claim; (b) obtain sufficient plans, surveys, schematics, photographs or video evidence to properly identify the damaged property, document visible damage, document temporary repairs and assess the value of the damage; (c) review with the claimant the preliminary estimate of damage or loss and the schedule of loss; (d) obtain from the claimant any additional supporting documentation or information that may be required to proceed with the claim; (e) conduct any additional inspections of the flooded area or damaged property that the Emergency Management Organization determines are required; and (f) advise the claimant that any discussions taking place at the time of inspection or at any point before the Emergency Management Organization issues a compensation statement do not constitute or imply approval or denial of all or part of the claim. 6(2) The Emergency Management Organization is not required to conduct an inspection under clause (1)⁠(a) if it is satisfied that (a) the flooded area and damaged property were previously inspected under clause (1)⁠(a) in relation to a claim made in respect of an earlier period of artificial flooding; and (b) a further inspection would not provide any additional relevant information. M.R. 54/2024 ASSESSMENT OF CLAIMS, COMPENSATION DECISIONS AND PAYMENT Assessment of claim 7 For each claim that was not dismissed under section 5, the Emergency Management Organization must determine the compensation to be awarded to the claimant based on the proportion of the property damage or economic loss that is attributable to artificial flooding that occurred during the period of artificial flooding, if any. M.R. 54/2024 Valuation of property damage 8(1) Subject to subsection (2), the value of damage to eligible real or personal property is to be based on the lesser of (a) repair cost; and (b) replacement cost. 8(2) The value of damage to eligible real or personal property may be based on another method of valuation of damage that the Emergency Management Organization considers appropriate if (a) a damaged item is a one-of-a-kind item or an item for which a replacement is not readily or practically available; or (b) in particular circumstances the Emergency Management Organization considers that repair cost or replacement cost is not an appropriate method of valuation of damage. 8(3) The value of damage to eligible real or personal property must not include the cost of upgrades, improvements or enhancements to the damaged property unless they are necessary to comply with prevailing building codes and conform to provincial safety or environmental standards. 8(4) The value of damage to eligible real or personal property caused by artificial flooding must be reduced for the value of items salvaged for re-use by the claimant, based upon the value of the salvaged items as determined by the Emergency Management Organization. M.R. 54/2024 Valuation of economic loss 9 The Emergency Management Organization must determine compensation for economic loss using the valuation method it considers appropriate, having regard to the nature of the claimant's economic loss. M.R. 54/2024 Reduction of compensation 9.1 Compensation may be reduced or refused if the claimant fails to (a) take all reasonable measures to (i) prevent further property damage, and (ii) return to work or recommence normal business operations as soon as possible after the occurrence of artificial flooding and to otherwise mitigate the claimant's economic loss; (b) document, record and, where possible, take photographic or video evidence of flood levels, damages, temporary repairs and any goods or materials the claimant disposes of prior to inspection by the Emergency Management Organization; (c) document and record all expenses for which a claim is submitted; (d) provide the Emergency Management Organization with any documentation or information it requires within the time period it specifies; or (e) allow the Emergency Management Organization to enter and inspect the location where the property damage or economic loss occurred, inspect any damaged property and examine any documents or financial records that may be required to prove the value of the property damage or economic loss. M.R. 54/2024 Compensation decision and payment of compensation 10(1) After determining the amount of compensation that is to be awarded to a claimant, the Emergency Management Organization must provide the claimant with a compensation statement that sets out (a) the amount of the compensation to be awarded; (b) information on the calculation of the compensation award; (c) explanations for any reductions to the compensation that have been applied; and (d) the terms, conditions and declarations to authorize and release the compensation payment. 10(2) Within 30 days after receiving the compensation statement, the claimant must (a) accept the compensation award set out in the statement; (b) dispute the compensation award and submit a written request for an appeal before the Disaster Assistance Appeal Board; or (c) request a one-time extension of no more than 30 days to further consider the compensation statement, at the end of which time the claimant must accept the compensation award or dispute it and appeal to the Disaster Assistance Appeal Board. 10(3) Without delay after a claimant accepts the compensation award, the Emergency Management Organization must provide the government's compensation payment to the claimant. Before providing a compensation payment, the Emergency Management Organization may require the claimant to sign a release form. 10(4) The Emergency Management Organization and a claimant may agree to finally resolve a part of the claimant's compensation claim, leaving other parts of the claim open for further determination or appeal. M.R. 54/2024 APPEALS Appeal to the Disaster Assistance Appeal Board 11(1) A claimant who wishes to appeal to the Disaster Assistance Appeal Board under subsection 12.4(1) of the Act must file an appeal application with the board in the form and with the information the board requires. The appeal application must be filed within 90 days after the date of the compensation statement setting out the compensation award being appealed, or within any longer period that the board allows. 11(2) The appeal application must contain a statement of the matter being appealed and the name and address of the claimant. 11(3) A claimant must deliver a copy of the appeal application to the Emergency Management Organization before the board may deal with the appeal. 11(4) Subject to subsection (6), the board must hold a hearing for each appeal. 11(5) The board must give written notice of the date, time and place of the hearing to the claimant and the Emergency Management Organization. 11(6) The board may consider an appeal without a hearing if (a) the claimant indicates that he or she prefers to have the appeal considered on the basis of written submissions; or (b) the board is satisfied that the appeal can be fairly considered without a hearing and the circumstances of the appeal make a hearing impractical. 11(7) The claimant may appear at a hearing and may be represented by counsel at a hearing or in relation to a written submission. 11(8) The Emergency Management Organization must promptly provide the board with copies of any documentation or information about the matter being appealed that is relevant to the appeal. The board must provide copies to the claimant on request at the claimant's expense. 11(9) In addition to receiving documentation and information from the Emergency Management Organization, the board may receive new or additional information or documentation from the claimant. 11(10) The board may receive information and documentation under oath, affirmation, declaration or otherwise, and is not bound by the rules of law respecting evidence that apply to judicial proceedings. 11(11) The members of the board have all the powers and protections of commissioners under Part V of The Manitoba Evidence Act when conducting an appeal hearing or otherwise considering an appeal. 11(12) In making its decision about an appeal the board is bound by sections 12.1 to 12.6 of the Act and by this regulation. The board must follow the valuation procedure used by the Emergency Management Organization unless it is satisfied that another valuation procedure is more appropriate and fair, having regard to the nature of the claimant's property damage or economic loss. 11(13) After a hearing or other consideration of an appeal, the board may, by order, (a) allow the appeal in whole or in part and award compensation to the claimant in a higher amount than the original compensation award or for an item not included in the original compensation award; or (b) dismiss the appeal and confirm the original compensation award. 11(14) The board must give the claimant and the Emergency Management Organization a copy of its order, together with written reasons for the decision. M.R. 54/2024 COMING INTO FORCE Coming into force 12 This regulation comes into force on the same day that The Shellmouth Dam and Other Water Control Works Management and Compensation Act (Water Resources Administration Act Amended) , S.M. 2008, c. 28, comes into force.