Floodway Compensation Regulation

Floodway Compensation Regulation, M.R. 209/2009 The Red River Floodway Act , C.C.S.M. c. R32 Regulation 209/2009 Registered December 29, 2009 bilingual version (HTML) Table of Contents Section 1 Definitions 2 Compensation application procedure 3 Claim may not be filed if no artificial flooding 4 Time for submitting claim form 5 Claimants' duties 6 Compensation for property damage 7 Compensation for economic loss 8 Compensation generally 9 Claim processing and inspection of damaged property 10 Payment of compensation 11 Appeal to the Disaster Assistance Appeal Board Definitions 1 The following definitions apply in this regulation. "Act" means The Red River Floodway Act . («  Loi ») "compensation" means compensation within the meaning of Part 2 of the Act. (« indemnisation ») "Emergency Measures Organization" means the Emergency Measures Organization continued under The Emergency Measures Act . (« Organisation des mesures d'urgence ») "floodway operations report" means the floodway operations report required by section 11 of the Act. (« rapport concernant le fonctionnement du canal de dérivation ») "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 person claiming compensation under Part 2 of the Act for the purpose of demonstrating the amount of the person's property damage or economic loss caused by artificial flooding. (« tableau des pertes ») Compensation application procedure 2(1) A person making a claim for compensation for property damage or economic loss caused by artificial flooding must (a) submit a compensation application to the Emergency Measures Organization using a form supplied or approved by it and include with the claim a preliminary estimate of the value of the damage or loss; (b) in the case of a claim for damage to real or personal property, submit the documentation or information the Emergency Measures Organization requires to show (i) that the requirements of subsection 2(2) (eligible property) of the Act are satisfied, and (ii) that subsection 2(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 Measures Organization requires to show (i) that the requirements of subsection 2(3) (eligible economic loss) of the Act are satisfied, and (ii) that subsection 2(5) (Water Resources Administration Act orders) of the Act does not apply in respect of the loss; (d) within the period specified in subsection 6(1) or 7(1), submit a schedule of loss in the form, and including the documentation and information, the Emergency Measures Organization requires; and (e) whenever required by the Emergency Measures 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 3(2)⁠(a), (b), (c), (e) or (f) of the Act. 2(2) [Repealed] M.R. 55/2024 2(3) Subject to subsection (4), a person may authorize an agent to prepare and submit the person's compensation claim, and the Emergency Measures Organization may deal with the agent for all purposes in relation to the claim. 2(4) The Emergency Measures Organization may require such proof of the agent's authority as it considers necessary. M.R. 55/2024 Claim may not be filed if no artificial flooding 3(1) A person may not submit a claim for compensation in a year when the floodway operations report indicates that no artificial flooding was caused by the operation of the floodway. The Emergency Measures Organization may refuse to accept compensation claims in such years. 3(2) A person may not submit a claim for compensation if the person's damaged property or the source of the person's economic loss was not within the area of artificial flooding shown in the floodway operations report. The Emergency Measures Organization may refuse to accept a compensation claim in such circumstances. Time for submitting claim form 4(1) A person making a claim for compensation must submit the compensation application and the preliminary estimate of damage or loss, referred to in clause 2(1)⁠(a), within 90 days after the day on which the floodway operations report is made available to the public. A compensation application and preliminary estimate of damage is not submitted until it is actually received by the Emergency Measures Organization. 4(2) The Executive Director of the Emergency Measures Organization may accept a compensation application and preliminary estimate of damage that is submitted after the day specified in subsection (1) if the person submitting the claim satisfies the Executive Director that extenuating circumstances prevented the person from submitting them before the specified day. 4(3) Unless the Executive Director accepts a late compensation application and preliminary estimate of damage under subsection (2), the Emergency Measures Organization may refuse to accept a person's claim if it receives the application and preliminary estimate of damage after the day specified in subsection (1). Claimants' duties 5 A person whose property is damaged by artificial flooding or who has an economic loss because of artificial flooding must (a) take all reasonable measures (i) to prevent further property damage, and (ii) to return to work or recommence normal business operations as soon as possible after the occurrence of artificial flooding and to otherwise mitigate his or her 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 person disposes of prior to inspection by the Emergency Measures Organization; (c) document and record all expenses for which a claim will be submitted; (d) on or before any date specified by the Emergency Measures Organization, provide it with any documentation and or information it requires in relation to the duties set out in clauses (a) to (c); and (e) as often as the Emergency Measures Organization may reasonably require, allow it to inspect the damaged property and to examine documents or financial records that may be required to prove the value of the property damage or economic loss. Compensation for property damage 6(1) A schedule of loss in relation to property damage must be filed within 60 days after the compensation application and preliminary estimate of loss is filed, or within any further period that the Emergency Measures Organization specifies. 6(2) Subject to subsection (3), compensation for damage to eligible real or personal property caused by artificial flooding is to be based on the lesser of (a) repair cost; and (b) replacement cost. 6(3) Compensation may be based on another method of valuation of damage that the Emergency Measures 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 Measure Organization considers that repair cost or replacement cost are not appropriate methods of valuation of damage. 6(4) Compensation 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. 6(5) Compensation must be reduced for the value of items salvaged for reuse by the claimant, based upon the value of the salvaged items as determined by the Emergency Measures Organization. Compensation for economic loss 7(1) A schedule of loss in relation to (a) a claim for loss of wages or salary, or for extraordinary costs and expenses of working, due to artificial flooding must be submitted within 60 days after the compensation application and preliminary estimate of loss is filed, or within any further period that the Emergency Measures Organization specifies; or (b) a claim for loss of business income, or for extraordinary costs and expenses of carrying on business, due to artificial flooding must be submitted within the period that the Emergency Measures Organization specifies, having regard to the nature of the claimant's economic loss. 7(2) Without limiting the generality of clause 2(1)⁠(e), a person who claims compensation for lost wages, salary or business income must provide the Emergency Measures Organization with sufficient financial information to enable it to assess the amount of the 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 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 (i) for previous fiscal periods comparable to the period of lost business income caused by artificial flooding, (ii) for the period of the period of lost business income caused by artificial flooding, and (iii) for any later fiscal period the Emergency Measures 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. 7(3) The Emergency Measure 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. Compensation generally 8(1) Compensation may be reduced if the claimant fails to carry out any of the claimant's duties under section 5. 8(2) [Repealed] M.R. 55/2024 M.R. 55/2024 Claim processing and inspection of damaged property 9 After the Emergency Measures Organization receives a compensation application, an Emergency Measures Organization representative must (a) promptly inspect the damaged property in the presence of the claimant; (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 the value 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; and (e) advise the claimant that any discussions taking place at the time of inspection or at any point before the Emergency Measures Organization issues a compensation statement do not constitute or imply approval or denial of all or part of the claim. Payment of compensation 10(1) After determining the amount of compensation that is to be awarded to a claimant, the Emergency Measures Organization will 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 Measures Organization must provide the government's compensation payment to the claimant. Before providing a compensation payment, the Emergency Measures Organization may require the claimant to sign a release form. 10(4) The Emergency Measures 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. Appeal to the Disaster Assistance Appeal Board 11(1) A claimant who wishes to appeal to the Disaster Assistance Appeal Board under subsection 5(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 Measures 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 Measures 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 submission; 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 Measures 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 claimant on request at the claimant's expense. 11(9) In addition to receiving documentation and information from the Emergency Measures 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 Parts 1 and 2 of the Act and by this regulation. The Board must follow the valuation procedure used by the Emergency Measures 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 Measures Organization a copy of its order, together with written reasons for the decision.