A Maze in Corn Inc v Manitoba Emergency Measures Organization et al, 2023 MBCA 92

Citation: A Maze in Corn Inc v Manitoba Emergency Measures Organization et al, 2023 MBCA 92 Date: 20231027 Docket: AI21-30-09696 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Karen I. Simonsen BETWEEN : ) G. M. Driedger , ) L. M. Forest and a maze in corn INC. ) P. F. Reimer ) for the Appellant ( Applicant ) ( Appellant ) Appellant ) ) L. D. Y. Cupples and - and - ) T. D. Edkins ) for the Respondent manitoba emergency measures ) Manitoba Emergency organization ) Measures Organization ) ( Respondent ) Respondent ) M. G. Tramley and ) M.

Intertas - and - ) for the Respondent ) Manitoba Disaster MANITOBA DISASTER ASSISTANCE ) Assistance Appeal Board APPEAL BOARD ) ) Appeal heard: Respondent ) January 17, 2023 ) ) Judgment delivered: ) October 27, 2023 beard JA I. THE ISSUES [ 1 ] This appeal addresses the

interpretation of compensation provisions in The Red River Floodway Act , CCSM c R32 [ RRFA ], and the Floodway Compensation Regulation , Man Reg 209/2009 [ FCR ]. More particularly, the applicant, A Maze in Corn, is appealing the decision of the respondent the Manitoba Disaster Assistance Appeal Board (DAAB) dismissing its appeal from the September 10, 2020 compensation notice of the respondent Emergency Measures Organization (EMO). [ 2 ] Leave to appeal to this Court on a question of law was granted under section 5(2) of the RRFA on the following ground (see 2022 MBCA 38 at para 8 ): . . .

Does compensation for economic loss under

Part 2 of the RRFA include compensation for future/anticipated economic losses? For example, are losses such as future loss of income, brand damage, loss of opportunity to invest, interest and professional costs eligible economic losses? (See also para 20.) [ 3 ] I will refer to these claims, together, as “the claims”. [ 4 ] The EMO denies that the DAAB erred and it argues that this Court has no jurisdiction to deal with one aspect of the appeal because it fails to raise a question of law. II.

BACKGROUND [ 5 ] A Maze in Corn operates a corn maze, petting zoo and haunted forest attraction (the business) on a property located on St. Mary’s Road, south of Winnipeg near St. Adolphe (the property). The property is located south of the gates of the Red River Floodway (the floodway). [ 6 ] The Red River runs through the City of Winnipeg, which is located on the Red River flood plain.

In years of unusually high water, the river overflows its banks and causes widespread flooding and sewer back-ups in Winnipeg, resulting in significant property damage and economic loss. [ 7 ] The floodway, which was built in 1962 and 1968 and expanded in 1997, is a structure that includes a large ditch (the floodway channel) to divert water around Winnipeg. The flow of water is controlled by a floodway control structure (the gates) on the south side of Winnipeg that diverts water from the Red River into the floodway channel.

When the gates are activated, the flow of water through the city is reduced and flooding in Winnipeg is either prevented or reduced. Unfortunately, the operation of the floodway causes water to back up to the south (i.e., upstream) of the gates, flooding properties to the south. [ 8 ] The RRFA , which came into force on April 20, 2005, is a statutory plan to provide compensation to those who are impacted by the artificial flooding caused by the operation of the gates. [ 9 ] In 2019, the fall conditions in the Red River basin were much wetter than normal.

The Manitoba Department of Water Stewardship (the Department) had determined that precipitation conditions posed a risk of unusually high water levels, which could potentially cause sewer back-up damage to homes in Winnipeg. It concluded that the artificial flooding to rural properties upstream (to the south) from the gates would be financially less costly than the projected sewer back-up damage within Winnipeg.

In anticipation that this flooding would occur, the Department was in communication with A Maze in Corn about potential flood impacts. [ 10 ] The floodway gates were operated from October 9 to November 7, 2019, resulting in the anticipated severe unnatural flooding for miles upstream, including the property.

The flooding was immediate and severe, completely flooding the “Haunted House” feature of the business within hours. [ 11 ] The 2019 Fall Red River Compensation Program was established under the RRFA and the FCR to provide compensation to eligible applicants for property damages and economic losses that were caused by the artificial flooding that year. [ 12 ] A Maze in Corn submitted a claim to the EMO pursuant to

Part 2 of the RRFA for compensation for its losses and provided documentation to support its claim for up to $1,161,789.05 in damages, including expert and legal fees. While its evidence included a report from a marketing firm, MAST Creative Inc., that estimated that A Maze in Corn’s total loss of future income from brand damage caused by the artificial flooding could exceed $800,000.00, it limited its claim for brand damage to $247,081.00.

Its position on this appeal is that, if it is successful, this Court should determine the compensation payable, which should include $800.000.00 for brand damage. [ 13 ] The EMO rejected the claim categories of brand damage, professional fees and lost opportunity to invest as being ineligible for coverage and ultimately set full compensation at $181,559.15. [ 14 ] A Maze in Corn appealed the EMO’s compensation notice to the DAAB pursuant to section 5(1) of the RRFA and

section 11 of the FCR . Materials were filed and an in-person hearing was held on August 25, 2021. The DAAB issued written reasons on October 14, 2021, confirming the EMO’s compensation notice and dismissing the appeal. [ 15 ] A Maze in Corn applied pursuant to section 5(2) of the RRFA for leave to appeal the decision of the DAAB to this Court, which leave was granted as set out in para 2 herein, leading to this appeal. III.

STANDARD OF REVIEW [ 16 ] As this is a statutory appeal, the usual appellate standards of review apply, being those set out in Housen v Nikolaisen , 2002 SCC 33 (see Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 37 , 50). Briefly, those standards are correctness for questions of law and palpable and overriding error for questions of fact and mixed fact and law (see Vavilov at para 37 ). [ 17 ] Appeals to this Court are limited to questions of law (see RRFA section 5(2) ). As this appeal raises a question of law, the applicable standard is correctness.

IV. THE EMO AND DAAB DECISIONS [ 18 ] The relevant portions of the EMO’s decision dealing with claims found to be ineligible are as follows: Future loss of income Claims for brand damage and future loss of customers in the amount of $247,081.00 [do] not fall within either part (

a) or part (

b) of the statutory definition of an economic loss. “economic loss” means (

a) w ages, salary or business income that a person loses because he or she cannot work or carry on business due to artificial flooding; and (

b) extraordinary costs and expenses of working or carrying on business that a person incurs due to artificial flooding. Instead, the amounts claimed are for anticipated losses, based on a set of assumptions about what will happen in the future. Until an eligible economic loss is incurred and it is established based on evidence that the loss was caused by artificial flooding and not any other factor, there is no statutory authority for the Red River Floodway Compensation program to pay a claim.

As such, the claim for future loss of income $247,081.00 is outside the scope of the program, and is not eligible for compensation. . . . Professional Fees The claim for professional fees of $7,500.00 does not fall within the scope of the definition of economic loss as defined in the Act and is not eligible for compensation. Liability for the manner in which the program is administered is expressly excluded by

section 12 of the Act. We therefore find these costs ineligible for compensation. Lost Business Opportunities The claim for loss of business opportunities of $50,000.00 [i.e., interest] does not fall within the scope of the definition of economic loss as defined in the Act, nor has it been supported with documentation. Liability for the manner in which the program is administered is expressly excluded by

section 12 of the Act. There is no statutory authority for the program to pay this amount and therefore is not eligible for compensation. [ 19 ] The DAAB issued a short decision confirming the EMO’s compensation decision, including its findings that the claims for future loss of income, professional fees and lost business opportunities did not “fall within the type of damages covered under this program.” Regarding economic loss, it stated that “[t]he amounts claimed are for anticipated losses, based on a set of assumptions about what will happen in the future.” V. THE PARTIES’ POSITIONS [ 20 ] A Maze in Corn’s position is that the DAAB erred in its

interpretation of the meaning of “economic loss” as defined in

section 1 of the RRFA .

It argues that the DAAB committed a reversible error of law in holding that the RRFA does not compensate for future or anticipated losses, including future loss of income, brand damage, loss of opportunity to invest, interest and professional costs as eligible economic loss. [ 21 ] The EMO argues that the appeal really raises three issues: whether future/anticipated losses can qualify as economic losses within the RRFA ; whether interest or a loss of opportunity to invest can qualify as economic losses within the RRFA ; and whether professional fees can qualify as economic losses within the RRFA . [ 22 ] The EMO argues that the first issue is not a pure question of law.

At the hearing, counsel clarified that economic loss could, in theory, include future losses if the evidence supported the claim. It argued that the finding by the DAAB was really a finding that the evidence did not support a finding of economic loss within the RRFA , and that this finding does not raise a question of law but, rather, a question of mixed fact and law, such that this Court has no jurisdiction to consider this issue. The EMO agrees that the second and third issues raise questions of law and are properly before this Court. VI. ANALYSIS A.

Jurisdiction—Question of Law [ 23 ] I do not agree with the EMO’s argument in this Court that the first issue in the ground of appeal does not raise a question of law. That was not the EMO’s position before the DAAB. While there are many statements in its written submission to the DAAB that belie this argument, the following two extracts are illustrative: Period of Loss The economic losses covered by the Program are also limited to a specific period of loss .

Thus, for example, the time period in which artificial flooding and related property damage are actually stopping a business from operating and generating a profit, is the period of loss in which a claimant can seek compensation . . .. . . . Allowing a claimant to seek compensation beyond the period of loss that is directly tied to the artificial flooding event and to compensate for a period of time when artificial flooding is no longer impeding a business from generating a profit would fall outside what the Program was intended to cover.

[emphasis in original] Second Ground of Appeal: . . . We would submit that . . . brand damage and future loss of income fall outside the scope of the Program and should not be compensated, for the following reasons: . . .

(2) Further, this type of a loss does not fall within either (

a) or (

b) of the statutory definition of economic loss. It does not reflect business income lost during the actual period of artificial flooding, nor does it fall into extraordinary costs or expenses incurred while carrying on business during the actual period of artificial flooding . [emphasis added] [ 24 ] Further, the decisions of both the EMO and the DAAB do not support this position. I have already set out the relevant portions of the EMO decision (see para 18 herein).

Regarding the claim for economic loss, the DAAB stated in its decision that “[t]he claim for Brand damage does not fall within the type of damages covered under this program.

The amounts claimed are for anticipated losses, based on a set of assumptions about what will happen in the future.” It made the same statement about the claims for interest costs and lost opportunity and for lawyer and professional fees not coming within the definition of economic loss. [ 25 ] In my view, the issue argued and determined by both the EMO and the DAAB was whether anticipated future losses and loss of future income could qualify as economic loss within the RRFA , not whether the actual losses claimed in this case would qualify. That is a question of statutory

interpretation, which is a question of law, as found by Burnett JA in his decision granting leave to appeal. As such, that issue is properly before this Court as a question of law, which this Court has jurisdiction to determine. B.

Interpretation and Application of the RRFA 1. Principles of Statutory

Interpretation [ 26 ] The process of interpreting a statute begins with “Driedger’s Modern Principle” of statutory

interpretation, being that “the words of

an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Ruth Sullivan, The Construction of Statutes , 7th ed (Toronto: LexisNexis, 2022) at 7. (

i) The History of the RRFA [ 27 ] As noted earlier, the RRFA , was enacted as a statutory plan to provide compensation to those who are impacted by artificial flooding caused by the operation of the floodway.

The purpose of the floodway is to prevent flooding in the City of Winnipeg; however, the floodway is only to be operated when “the expected benefits of doing so clearly and substantially outweigh the expected costs”, including the cost from artificial flooding to the south of the gates (Manitoba Infrastructure, Red River Floodway Inlet Structure – Potential Operation October 2019: Analysis of Risks, Potential Benefits and Costs of Lowering River Levels in the City of Winnipeg by Raising Levels Upstream of the Floodway Artificially Under Rule 4 , (report) by Peter Johnston (9 October 2019) Appendix A at 12, sections 4(4)(c), 4(6)). [ 28 ] When the Minister of Water Stewardship, the Hon Mr.

Steve Ashton (the minister), introduced the RRFA , then Bill 23, in the Legislature in March 2004, he described it as giving “statutory coverage for compensation” for flooding “above the state of nature” (Bill 23, The Red River Floodway Act , 2nd Sess, 38th Leg, Manitoba, 2004, at 797 (first reading 11 March 2004)). [ 29 ] On June 7, 2004, Bill 23 was considered by the Standing Committee on Social and Economic Development at a hearing that included members of the public.

One public concern came from the Keystone Agricultural Producers, who were concerned about receiving fair and adequate compensation in the event that land could not be seeded due to flooding (that is anticipated future loss of income due to earlier artificial flooding). In response to that concern, the minister stated (at p 175): . . . . . . Certainly, the [ RRFA ] is designed to look at economic losses that would be impacted, for example, by delayed seeding. The definition of damage is quite broad, in terms of including economic losses, not just damage to property.

That is quite different from Disaster Financial Assistance, which is very much focused in on damage to property. So I can certainly assure you that this goes far beyond crop insurance and actually anticipates the kind of scenario that is most likely, which is where you have unseeded crops. So I appreciate the concern that has been raised. I think if you see the legislation, if we have the opportunity to discuss it in more detail, that broader concept of economic loss is built right in. That is very much keeping in mind the kind of situation that agriculture is often faced with.

It is not the value of the seeds, it is the loss of income from delayed seeding or prevented seeding. . . . [ 30 ] The minister’s statement indicates that the purpose of compensation for economic loss extends to loss of income, which he described as being “quite broad”.

[ 31 ] On June 10, 2004, when Bill 23 received Royal Assent, the Premier of Manitoba, the Hon Mr. Gary Doer, stated (at p 3422): . . . We operated [the floodway] in 2002 and again today. We operated it today because it was the right decision for the majority of Manitobans. We also provided full compensation to any victim . We did not have a deductible. We did not have a cap. We provided full compensation , and I am pleased that our legislation, in law, provides what members opposite would not give in 1997, when people were affected by the Red River Valley.

That is the principle under which we are operating. . . . [emphasis added] (ii) Statutory Framework [ 32 ] Compensation claims are governed by the RRFA , and in particular

Part 2, and the FCR . The applicable sections are set out in full in an Appendix to these reasons. [ 33 ]

Section 2 of the RRFA , which is under

Part 2, contains limiting criteria regarding claims, eligible property and eligible economic loss. Section 2(1) allows a person to claim compensation: Claims for artificial flood damage and economic loss 2(1) A person may claim compensation under this

Part if (

a) artificial flooding has damaged the person’s eligible property or caused the person to have an economic loss; and (

b) the person meets any applicable eligibility requirements set out in the regulations. [ 34 ] The phrase “economic loss” is defined in

section 1 of the RRFA , which states: “economic loss” means (

a) wages, salary or business income that a person loses because he or she cannot work or carry on business due to artificial flooding; and (

b) extraordinary costs and expenses of working or carrying on business that a person incurs due to artificial flooding. [ 35 ] Artificial flooding means, in relation to a given event, flooding that is caused by the operation of the floodway in which the Red River exceeds its natural level at the time of the event (see

section 1 of the RRFA ). [ 36 ] Sections 2(2)-(5) are not at issue here and are not relevant to the matters to be determined in this appeal. [ 37 ]

Section 3 relates to the application for compensation.

The EMO must: - determine whether the claimant is eligible for compensation (section 3(2)(a)); - if the claim relates to economic loss, determine whether artificial flooding caused the loss and whether it is an eligible loss (section 3(2)(c)); - assess the value of the damage or loss (section 3(2)(d)); and - determine the amount of any compensation awarded under the RRFA in respect to the damaged property or loss ( section 3(2) (f)). [ 38 ] Section 4(1) is particularly relevant: No claimant contribution 4(1) A compensation award is to be based on the full value of the artificial flood damage to the claimant’s eligible property or of his or her economic loss due to artificial flooding , as assessed by the Manitoba Emergency Management Organization, without requiring the claimant to bear a portion of the damage or loss . [emphasis added] [ 39 ]

Section 7 of the RRFA permits a person to claim compensation either by way of an administrative claim under

Part 2 of the RRFA , or by way of a claim in court, the latter of which is to be determined according to generally applicable legal principles, but not both. [ 40 ] Finally, the parties agree that

section 6 of The

Interpretation Act , CCSM c I80 , applies, which states that “[e]very Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal

interpretation that best ensures the attainment of its objects” (emphasis added). (iii) Object of the Act [ 41 ] The parties agree, as do I, that the object of the RRFA is to provide a statutorily-guaranteed compensation scheme for

property owners and others affected by artificial flooding caused by the operation of the Red River Floodway. (iv) Jurisprudence [42] The “entire context” within which “the words of

an Act are to be read” includes the relevant jurisprudence andapplicable common law principles (Sullivan at p 7). 2. The Parties’ Positions [43] A Maze in Corn’s position is that this Court should apply the principles in Manitoba Fisheries Ltd v The Queen, (SCC), [1979] 1 SCR 101, and those related to expropriation legislation, to find that the principle of full compensation appliesto a legislative scheme like the RRFA that interferes with a claimant’s right to enjoy his private property. It argues that full compensationrequires a wide

interpretation of “economic loss” as it is defined in the RRFA that would include the claims at issue in this case. [44] The EMO argues that expropriation is governed by a wholly separate statutory scheme with its own set of

definitionsand compensation principles that do not inform the

interpretation of the compensation scheme under the RRFA. 3. The Legal Principles [45] The principles in Manitoba Fisheries were applied by the Supreme Court of Canada in The Queen (BC) v Tener, (SCC), [1985] 1 SCR 533 at 545; Canadian Pacific Railway Co v Vancouver (City), 2006 SCC 5 at paras 30-32; and, mostrecently, in Annapolis Group Inc v Halifax Regional Municipality, 2022 SCC 36.

Those cases, like the present appeal, all address thecircumstances in which a claimant will be entitled to compensation and what compensation is payable where government legislation hasimpeded a claimant’s use of private property for a public benefit without the government actually taking title to that property. [46] I will start with a brief review of the facts of those cases. In Manitoba Fisheries, government legislation had enacted amonopoly over fish exporting, which forced Manitoba Fisheries out of business. The claim before the courts was for compensation forthe loss of the goodwill in the business.

The Court of Appeal found that there was no right to compensation because the government hadnot taken away any actual property. That decision was overturned on appeal to the Supreme Court of Canada.

Ritchie J, for the Court,found that the deprivation of goodwill constituted deprivation of property and that, “unless the words of the statute clearly so demand, astatute is not to be construed so as to take away the property of a subject without compensation” (at p 118). [47] In Tener, the Teners were the registered owners of mineral claims on lands owned by the British Columbia Government(BC) and later included in a provincial park.

BC limited the exploitation of natural resources on the land until the Teners were eventuallytold that no new exploration or development would be permitted, thus denying them the possibility of exploiting their mineral claims. Estey J, for the majority, found that (at p 563): . . . The denial of access to these lands occurred under the Park Act [Park Act, RSBC 1996, c 344], and amounts to a recovery by theCrown of a part of the right granted to the respondents in 1937. This acquisition by the Crown constitutes a taking from whichcompensation must flow.

Such a conclusion is consistent with this Court’s judgment in Manitoba Fisheries Ltd. v. The Queen, (SCC), [1979] 1 S.C.R. 101. . . . [48] In CPR, CPR owned a corridor of land running through Vancouver that was a decommissioned rail line. It wanted tosell the land for residential and commercial purposes, but the City and other government agencies sought to keep it intact withoutpurchasing it. CPR applied for compensation on the basis that there had been a de facto taking of the land for which it was entitled tocompensation (at paras 1-4, 28).

The Court adopted the legal principles related to de facto taking in Manitoba Fisheries and Tener, butfound that the test had not been met on the facts because CPR had not been deprived of all reasonable use of the land and, therefore, therewas no right to compensation (see paras 31-34). [49] In Annapolis, Annapolis had gradually acquired a large piece of land over time, starting in the 1950s, with the intentionof eventually developing it. Over the years, it had been used as a public park. That public use was supported by Halifax, which providedfinancial support to organizations that encouraged that use.

Halifax had adopted a series of planning strategies that contemplated, but didnot permit, future residential development on the Annapolis property. Annapolis made several attempts pursuant to land use legislationto develop the land, but it was unsuccessful.

In 2016, Halifax passed a resolution refusing to initiate the process that would permitdevelopment, and Annapolis sued, alleging a constructive taking (see paras 5-9). [50] The Court of Appeal rejected the claim on the basis that it did not have a reasonable chance of success because theapplicable test for a constructive taking required land to have actually been taken from Annapolis and acquired by Halifax (see para 14). [51] At the Supreme Court of Canada, Côté and Brown JJ (for the majority) stated that the appeal was an opportunity to“clarify the circumstances in which state regulation of land use may effect a de facto or (as we refer to it) ‘constructive’ taking of privateproperty” (at para 1), noting that they were applying, but not changing, the principles in those earlier cases (see also paras 22, 25, 41). [52] I will address three issues: (

i) the nature of a constructive taking; (ii) a permanent versus temporary taking; and (iii)compensation. (

i) The Nature of a Constructive Taking [53] The majority in Annapolis explained that “[a] ‘taking’ is a ‘forcible acquisition by the Crown of privately ownedproperty . . . for public purposes” (at para 18). The majority noted that it may take the form of either a constructive taking, being an

effective appropriation of private property by a public authority exercising its regulatory powers, or of a formal expropriation by, in the case of land, taking title ( ibid ). Thus, they equated a constructive taking with an expropriation. [ 54 ] The majority clarified that not all regulation of private property constitutes a constructive taking; rather, valid regulation becomes constructive taking “where the effect of the regulatory activity deprives a claimant of the use and enjoyment of its property in a substantial and unreasonable way, or effectively confiscates the property” (at para 19).

Stated otherwise, for Crown regulation to effect a constructive taking of property, “private rights in the property must be virtually abolished, leaving the [claimant] with ‘ no reasonable use ’ of the property” (emphasis in original) ( ibid ). [ 55 ] After reviewing the principles in Manitoba Fisheries , CPR and Tener , the majority in Annapolis held that there are two criteria for determining whether there has been a constructive taking (at para 4): (1) a beneficial interest — understood as an advantage — in respect of private property accrues to the state, which may arise where the use of such property is regulated in a manner that permits its enjoyment as a public resource; and (2) the impugned regulatory measure removes all reasonable uses of the private property at issue. (See also para 25.) [ 56 ] The majority stated that the relevant “beneficial interest” in the first criterion “refers not to actual acquisition of the equity that rests with the beneficial owner of property . . . but to an ‘advantage’ flowing to the state” (at para 38; see also paras 25, 39- 44). [ 57 ] The majority cautioned that, “because the test focusses on effects and advantages , substance and not form is to prevail” (at para 45).

Therefore, a court determining whether there has been a constructive taking should undertake a realistic appraisal in the context of the case, including the nature of the government action, the nature of the land and its historical and current uses, and the substance of the alleged advantage, which may take many forms. [ 58 ] Finally, the majority stated that the government’s intention or purpose in enacting the legislation is not an element of the test for constructive taking, because the test looks at the advantages and effects of the legislation and not at whether there was bad faith or an ulterior motive (see para 52).

However, intention is not irrelevant, as the objectives being pursued in enacting the legislation may be evidence of a constructive taking.

In the end, the focus should remain on the effects of the state action, as what matters is “whether the state-imposed restrictions on the property conferred an advantage on the state that effectively amounts to a taking” (at para 57; see also paras 53-56). [ 59 ] In each case, while the manner of the government intervention was different, all resulted in a legislated public benefit or advantage from the use of private property coupled with the removal of all reasonable uses of the property by the claimant.

Further, while those interventions occurred in a different manner from the artificial flooding in this case, the legal effect of causing the loss of the use of private property due to artificial flooding for a public benefit can be equated with the legal effect of reducing or taking away timber licences, mineral rights or significantly limiting land development. (ii) Permanent Versus Temporary Taking [ 60 ] The constructive takings in cases like Manitoba Fisheries , CPR , Tener , Teal Cedar Products Ltd v British Columbia , 2017 SCC 32 [ Teal Cedar 2017], and Annapolis involved permanent, or at least very long-term, takings, while in this case, it was short term, or temporary.

The fact that a taking is of short duration, rather than long term or permanent, does not in any way diminish the foundational principles of a constructive taking as explained in the jurisprudence, and there is nothing in the jurisprudence that suggests that the taking must be permanent to be compensable. Further, while the duration of the actual taking may be short, the effects could be as extensive and devastating as a long-term or permanent taking.

In my view, the fact that the taking was temporary does not make the principles of constructive taking and compensation inapplicable or irrelevant. [ 61 ] I am of the view that a flooding caused by the operation of the floodway, as occurred in this case, would meet the first criterion of the test for a constructive taking set out in Annapolis and related jurisprudence. Where the effect of that flooding meets the second criterion of the Annapolis test, that flooding would constitute a constructive taking, and the principles set out in Annapolis and related jurisprudence would apply to the

interpretation of the RRFA and to the determination of compensation. (iii) Compensation [ 62 ] The majority in Annapolis explained the right to compensation that flows from a constructive taking of property as follows (at paras 21-22): At common law, taking of property by the state must be authorized by law, and triggers a presumptive right to compensation which can be displaced only by clear statutory language showing a contrary intention — that is, an intention not to compensate (see P. A. Warchuk, “Rethinking Compensation for Expropriation” (2015), 48 U.B.C. L. Rev. 655, at pp. 656 and 678-81).

This was recognized in Attorney-General v. De Keyser’s Royal Hotel , [1920] A.C. 508 (H.L.) , wherein Lord Atkinson stated: “The recognized rule for the construction of statutes is that, unless the words of the statute clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation” (p. 542). . . . . . .

It is important to stress that the rule contemplates that governments have the power to immunize themselves from liability to pay compensation for a taking. . . . [T]he point is that governments may effect takings without paying compensation, so long as the enabling statute clearly expresses that intention. . . .

[63] The majority in Annapolis noted that the Court first applied the rule set out in Attorney-General v De Keyser’s RoyalHotel, [1920] AC 508 (HL (Eng)) in Manitoba Fisheries (see para 23), where it cited with approval the following passage from BelfastCorpn v OD Cars Ltd (1959), [1960] AC 490 (HL (N Ireland)) (Manitoba Fisheries at p 110): . . . [T]he general principle . . . [is] that the title to property or the enjoyment of its possession was not to be compulsorily acquired froma subject unless full compensation was afforded in its place. Acquisition of title or possession was ‘taking.’ Aspects of this principle arefound in the rules of statutory

interpretation devised by the courts, which required the presence of the most explicit words before anacquisition could be held to be sanctioned by

an Act of Parliament without full compensation being provided, or imported an intention togive compensation and machinery for assessing it into any Act of Parliament that did not positively exclude it. . . . [emphasis added] [64] The Court’s finding in Annapolis that, where there is a statutory “taking”, legislative provisions are to be read broadlyand with a view to full compensation, was found in its earlier decisions in British Columbia (Forests) v Teal Cedar Products Ltd, 2013SCC 51 [Teal Cedar 2013] and Teal Cedar 2017.

Briefly, Teal Cedar held forestry licences on land owned by the British ColumbiaGovernment (BC) which entitled it to harvest timber. Under the licences, it had made improvements to the land, such as building roadsand bridges to access the timber. BC passed legislation to create a provincial park that included land on which Teal Cedar held licences.

The legislation reduced Teal Cedar’s allowable cut within the park and contained provisions for compensation. [65] In Teal Cedar 2013, the issue was whether the compensation provisions of the legislation permitted the payment ofcompound interest or only simple interest. One of Teal Cedar’s arguments was that the claim “is a type of expropriation” and that “theprinciple of full compensation applies such that compound interest must be awarded” (at para 37). Rothstein J, for the Court, did notreject this argument on the basis that expropriation principles did not apply.

Rather, he noted that “courts presume that legislaturesintend to provide full compensation for expropriations” (ibid). He stated that compound interest would be a more accurate way ofcompensating for the time-value of money (see para 10), but that the presumption of full compensation had been rebutted by the specificstatutory provisions in that case (see para 37). [66] In Teal Cedar 2017, there were several challenges to the arbitrator’s final award to Teal Cedar.

The majoritydetermined the appeal largely on the basis of jurisdiction (because appeals were limited to questions of law) and the application of thestandard of review. The minority of four judges disagreed with the majority on one aspect of the appeal, and in their reasons looked atthe purpose and context of the legislation that restricted Teal Cedar’s licences.

In doing so, they described it as having an “expropriationcontext” (at para 116), stating (at para 117): As the arbitrator pointed out, the FRA [Forestry Revitalization Act, SBC 2003, c 17] is a “species of expropriation legislation”(Arbitration Award, April 27, 2011, at para. 8). A presumption in favour of a payment of full compensation therefore applies to itsinterpretation: British Columbia (Forests) v. Teal Cedar Products Ltd., 2013 SCC 51, [2013] 3 S.C.R. 301, at para. 37;E. C. E. Todd, The Law of Expropriation and Compensation in Canada (2nd ed. 1992), at p. 35.

This presumption, however, does notmean that the owner of an expropriated property interest is awarded compensation in excess of the value of this interest. Rather, fullcompensation makes the owner “economically whole” for the loss of this interest (Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1S.C.R. 160, at paras. 55-56, citing Diggon-Hibben, Ltd. v.

The King, (SCC), [1949] S.C.R. 712). [emphasis added] (See also Rock Resources Inc v British Columbia, 2003 BCCA 324 at para 136, leave to appeal to SCC refused, 29918 (8 April 2004);and Smith v Alliance Pipeline Ltd, 2011 SCC 7 at paras 55-56.) [67] While the majority does not comment on this statement in the minority’s decision, it does find that the arbitrator’sdecision dealing with the issue in which it made this finding was reasonable and upheld it (see Teal Cedar 2017 at para 99). [68] The issue of government compensation for the compulsory use of private property for a public purpose without takingtitle to that property has arisen in other circumstances.

In Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC 13, the Courtupheld a finding that compensation was payable although no land was expropriated, where a statutory authority constructed a highwaythat significantly and permanently interfered with access to the appellant’s land and its business. The Court found that the activities inthat case constituted the tort of private nuisance and injurious affection. [69] While the Court in Antrim was not required to address compensation, subsequent jurisprudence dealing with injuriousaffection has done so.

After noting that the applicable legislation provided for damages but contained no rules to guide thedetermination of those damages, the Court in His Majesty the King in Right of Newfoundland and Labrador v OD Holdings Limited andCity Sand and Gravel Limited, 2022 NLCA 60, applied broad principles to that determination, finding that the claimant was entitled to“full compensation”, to be made “economically whole” (at para 93). [70] In my view, government action through legislation or regulation that effects a constructive taking is a “species ofexpropriation legislation” (Teal Cedar 2017 at para 117), and the taking is done in an “expropriation context” (ibid at para 116).

Further,the jurisprudence requires that the compensation payable for that taking be “full compensation” that makes the claimant “‘economicallywhole’ for the [resulting] loss” (ibid at para 117). [71] While the jurisprudence refers to “full compensation” and making a claimant “economically whole”, those terms alsocontain limits.

The goal of providing compensation in an expropriation context is to ensure that no one is “victimized in loss because ofthe accident that his land . . . [is] required for public purposes” (see Diggon-Hibben Ltd v The King, (SCC), [1949] SCR712 at 715, also cited in Smith v Alliance Pipeline Ltd, 2011 SCC 7 at paras 55-56; and adopted in Manitoba v Russell Inns Ltd et al,2013 MBCA 46 at para 112).

That said, compensation is also said to require “full indemnity” but no more than that, and not a “windfall”(cited at p 10 of the Report of the Ontario Law Reform Commission on the Basis for Compensation for Expropriation, (Toronto:Department of the Attorney General, 1967) [Ontario Law Reform Commission Report] and explained at para 81 herein). In addition, asnoted earlier, the right to full compensation can be limited or taken away by legislation, as long as that intention is clearly expressed.

4. Application of the Legal Principles [72] I will now address the application of these principles to the three heads of compensation at issue: (

i) future oranticipated economic loss; (ii) interest or loss of opportunity to invest; and (iii) professional and legal fees. (

i) Economic Loss [73] The EMO acknowledged in its written material and at the appeal hearing that “a claim for future (or ongoing) loss ofincome would be compensable” and “that a compensable loss would not have to be contemporaneous with a flood event.” Thisconcession, with which I agree, is in accordance with the principle that there must be “full compensation” that makes the claimant“economically whole”. [74] However, the EMO goes on to distinguish between what it calls ongoing future losses and anticipated losses, the latterof which it says are not compensable.

While I would not endorse that distinction, which I have some difficulty understanding, thedetermination of what are and are not “costs and expenses” included in economic loss within the legislation involves factual findings thatrelate to the valuation of the loss, which are not, in my view, issues to be resolved in this appeal.

Part of the determination ofcompensation would be to ensure that there is full compensation that makes the owner “economically whole” and that, as stated insection 4(1) of the RRFA, the compensation is based on the “full value . . . of his or her economic loss . . . without requiring the claimantto bear a portion of the damage or loss.” This analysis would also include consideration of the finding in Manitoba Fisheries that theloss of goodwill that was brought about by the government action (here the artificial flooding) was a loss of property for which theclaimant was entitled to compensation (see pp 110, 118). (ii) Interest (iii) Professional and Legal Fees (

a) The Parties’ Positions [75] A Maze in Corn’s position is that it is entitled to pre-judgment interest as part of the full compensation to which it isentitled because pre-judgment interest is compensatory in nature, being “a natural extension of the underlying damages award” that “isneither a windfall [to the successful litigant], nor punishes an unsuccessful party”, but “puts that litigant in the position it would havebeen in had it received the moneys when it was entitled to do so” (see Hislop v Canada (Attorney General) (2004), 46 DLR (4th) 644(ONCA) at para 145; upheld by the Supreme Court of Canada, see 2007 SCC 10 at para 135). [76] A Maze in Corn further argues that the term “economic loss” is defined to include “extraordinary costs and expenses of. . . carrying on business that a person incurs due to artificial flooding”, which would include the extraordinary costs and expenses ofpursuing compensation for its business due to the property damage and economic losses caused by the flooding. [77] The EMO argues, relying on Re Kimpe v Union Gas Ltd (1985), (ON SC), 19 DLR (4th) 176 at pp179-80 (ON H Ct J (Div Ct)), that the Courts have held, in other contexts, that where there is no express provision in the legislationproviding for the payment of interest on a compensation award, no interest is payable. [78] In a similar vein, the EMO argues that professional and legal fees are not payable because they are not extraordinarycosts of doing business due to artificial flooding and, further, that had the legislature so intended, it would have made provision for theirpayment in the legislation.

In support of the latter argument, it points to legislation in other contexts where costs have been specificallyincluded—for example, The Expropriation Act, CCSM c E190, section 15(6); and The Real Property Act, CCSM c R30, section183(1)(b). It also relies on the decision in Canada (Attorney General) v Mowat, 2009 FCA 309 at para 95, which deals with theinterpretation of section 53(2)(

c) of the Canadian Human Rights Act, RSC 1985, c H-6. (

b) Analysis and Conclusion [79] As found in Teal Cedar 2017, legislation (like the RRFA) that takes away private property rights is a “species ofexpropriation legislation” (at para 117) and has an “expropriation context” (at paras 116, 118). I will begin my analysis with the 1967Ontario Law Reform Commission Report that looked at the deficiencies in the principles governing compensation under expropriationlegislation and made recommendations for changes (see p 9). In examining the

interpretation of expropriation legislation by the courts,it concluded that the

interpretation and application of the principles for granting compensation had not been consistent over time,resulting in confusion and uncertainty (see pp 12-15). [80] The Ontario Law Reform Commission Report begins by stating that the principle of expropriation legislation is that ofdue compensation and that “the paramount policy consideration behind any such principle must be indemnity for loss suffered” (at p10).

It states that the true basis for compensation is “the fulfilment by the state of its obligation to repair the injury caused to particularindividuals for the public good, and to minimize the loss, inconvenience, and disturbance to the life of its citizens to as great an extent asis possible” (at p 11), although it also cautioned that a claimant should not receive more than that amount, or a windfall (see p 10). [81] Dealing specifically with legal and appraisal costs, the Ontario Law Reform Commission Report concludes that “[s]incethe purpose of the compensation is to make the expropriatee economically whole, he should be fully reimbursed for the legal andappraisal costs incurred” (at p 39).

It recommends the payment of full solicitor-client costs, stating that “claimants should not be placedin a position where they are afraid to consult the legal profession because they are apprehensive about the cost” (at p 40). It states thatthis applies equally to appraisal fees. [82] Regarding interest, the Ontario Law Reform Commission Report states that “[t]he awarding of interest should beregarded as compensation for the temporary loss of capital” (at p 51).

[ 83 ] As found by this Court in Russell Inns , the Ontario Law Reform Commission Report led to changes in the expropriation legislation in Ontario and both were influential in shaping the 1970 amendments to the expropriation legislation in Manitoba (see para 118). [ 84 ] These principles have been applied recently in Lynch v St John’s (City) , 2020 NLCA 31 . That Court was dealing with a claim related to the constructive expropriation of land as a result of restrictions on use that had been imposed (see para 4).

It agreed with the claimant’s position that expropriated property owners should be sufficiently funded to make an expropriation claim (see paras 91- 92).

It found that “appraisal expenses and legal professional fees can be treated as part of an award of costs or as part of ensuring full and complete compensation ” (at para 144) and that “generally (but subject to any clear statutory direction to the contrary) there is no reason why a claimant should not be ‘fully compensated’ for his legal and appraisal expenses subject only to a requirement of reasonableness” (at para 145). [ 85 ] Regarding interest, the Court in Lynch stated that “[t]he general principle in expropriation cases is that, absent special circumstances, the [claimant] is entitled to interest on the compensation money from the time of the compulsory taking” (at para 115).

The Court explained that “[i]nterest is not to be regarded as a penalty . . . rather, it is paid to compensate for the loss of use of the money resulting from delay in payment, whether or not any party is responsible for the delay” ( ibid ).

In Teal Cedar 2013, Rothstein J stated that compound interest was a more accurate way of compensating parties for the time-value of money than simple interest (see para 10). [ 86 ] While the Ontario Law Reform Commission Report deals with expropriation legislation, I do not agree with the EMO’s position that expropriation legislation is “a wholly separate statutory scheme with its own set of

definitions and compensation principles” that “do not inform the scope of compensation available under the RRFA ”. As found earlier, legislation like the RRFA that effects a constructive taking is a “species of expropriation legislation” and the taking occurs in an “expropriation context” (see para 70 herein). Both schemes deal with the situation where the state has taken private property for public purposes and address the question of the appropriate compensation. While the provisions of the legislation must govern the calculation of compensation, in both cases, the

interpretation of that legislation is governed by the same underlying principles, the most important being that of making the claimant “economically whole” ( ibid ). [ 87 ] It is true that the expropriation legislation has specific provisions governing interest and professional fees, while the RRFA does not. However, the statutory scheme in the RRFA demonstrates a different approach to determining compensation than that taken in the expropriation legislation, which are explained in the Ontario Law Reform Commission Report .

That report considers two drafting approaches—that of a simple statutory directive to pay “due compensation”, wherein the elements of that compensation are left to the adjudicator (at p 9) and the alternative approach of stipulating by statute the relevant factors to be considered (see p 10)—and it recommends the latter for a number of reasons. [ 88 ] A review of expropriation legislation shows that the legislators have followed that recommendation in drafting expropriation legislation and enacted specific factors like interest, legal costs and professional costs, that should be taken into account in determining compensation. (See, for example, The Expropriation Act at sections 15(6) and 26(1) .) [ 89 ] That is not the approach taken in the RRFA .

Instead of legislating specific factors or elements of loss that will, or will not, be eligible for compensation, the RRFA sets out general governing principles and leaves it to the EMO to determine the specific elements to be compensated. This is evident in the wide description of “economic loss” in

section 1 , and also in section 3(2)(d), wherein the EMO is directed to “assess the value of the damage or loss”. The FCR also lacks specifics as to the elements to be compensated. While a claimant must submit a “schedule of loss” containing a “detailed formal statement of . . . economic loss” (at

section 1; see also

section 2(c)), and provide documentation to support its claim (sections 2(d), (e)), there are no directions as to the specific elements to be included or what will or will not be eligible for compensation. [ 90 ] I will briefly address the decisions to which the EMO has referred. In Kimpe , the Court described the issue before it to be whether a landowner was entitled to interest on legal costs. It stated that the legislation “has precisely defined the circumstances under which interest is payable to a claimant on an award for compensation. . . .

The provisions of the Act relating to interest to be awarded to claimants are not wide enough, in my view, to confer a right to interest on taxed costs” (at p 179). This is an example of legislation that set out specific elements of compensation, and the Court was interpreting that legislation. That is not the case in the matter before this Court. Thus, Kimpe does not assist with the

interpretation of the RRFA as argued by the EMO. [ 91 ] Mowat was appealed to the Supreme Court of Canada, so I will refer to that decision ( Canada (Canadian Human Rights Commission) v Canada (Attorney General) , 2011 SCC 53 ). My first comment is that Mowat is not dealing with expropriation or an expropriation context, so there is, understandably, no reference to expropriation principles.

Mowat related to a claim of discrimination under the Canadian Human Rights Act , wherein the tribunal had awarded legal costs to the victim under a provision of the statute permitting compensation for “any expenses incurred by the victim as a result of the discriminatory practice” (section 53(2)(c)). The Court found that decision to have been unreasonable when considered in the context of other expense provisions of the legislation (see paras 37-39).

It also noted that the term “costs” is “distinct from either compensation or expenses”, and “[i]f Parliament intended to confer authority to order costs, it is difficult to understand why it did not use this very familiar and widely used legal term of art to implement that purpose” (at para 40). The Court lists other reasons for its conclusion, but it is not necessary to review them. [ 92 ] In this case, there are no provisions in the RRFA that indicate a narrow

interpretation for compensation or “economic loss”, and the definition of “economic loss” specifically includes “costs”. If anything, the decision in Mowat supports a wide

interpretation of those provisions that includes interest and legal costs. [ 93 ] The EMO has offered The Real Property Act as an example of legislation that specifically permits the granting of interest. The Real Property Act is not expropriation legislation and it does not address an award made in an expropriation context. While it is clearly open to the legislature to include the payment of costs or interest in a statutory scheme, the failure to do so does not necessarily mean that they are not compensable. This argument is also of no assistance. [ 94 ] In

summary, the statutory definition of economic loss and the provisions for compensation in the RRFA are wide and do

not include specific factors or elements of loss that will be either included or excluded. Further, section 4(1) supports a wide

interpretation of compensation, in that it states that a compensation award is to be based on the “full value of the . . . economic loss due to artificial flooding” and is to be “without requiring the claimant to bear a portion of the damage or loss.” It is difficult to imagine a wider definition of compensation.

This is consistent with the intention expressed by both the minister and premier at the time that the legislation was enacted. [ 95 ] Further, as stated in Annapolis , a “taking” includes both a constructive taking and an expropriation (see para 18), and, as a review of the jurisprudence followed in Annapolis discloses, the underlying principles of compensation in expropriations also apply to constructive takings.

Of particular importance is the principle of full compensation that makes the claimant whole, which can be limited by statute, provided that the statutory provision clearly expresses that intention (see paras 21-22). [ 96 ] Of relevance in this case, the jurisprudence states that compensation would include interest, and legal and professional costs, unless those costs were excluded by clear legislation. [ 97 ] I would conclude that, when the RRFA and FCR are interpreted in accordance with Driedger’s Modern Principle of statutory

interpretation, the compensation payable as economic loss does not exclude any of the items at issue in the claim in this case. 5.

Application to the Facts [ 98 ] As stated earlier, the test for a constructive taking is that set out in Annapolis , as adopted from Manitoba Fisheries and Tener , being (at para 4 ): . . . . . . (1) a beneficial interest — understood as an advantage — in respect of private property accrues to the state, which may arise where the use of such property is regulated in a manner that permits its enjoyment as a public resource; and (2) the impugned regulatory measure removes all reasonable uses of the private property at issue. [ 99 ] Applying the first criterion requiring a benefit or advantage to the state, Manitoba used the property to hold back water that would otherwise have flooded Winnipeg, which would have caused significant damage to Winnipeg properties and significant cost to both Winnipeg and Manitoba.

By artificially flooding the property, that damage and the resulting significant costs in Winnipeg were avoided. This was clearly a use of private property for a public purpose that was a benefit or advantage to Winnipeg and Manitoba.

In fact, this beneficial use was the whole purpose for the construction of the floodway. [ 100 ] Applying the second criterion requiring the removal of all reasonable uses of the property, as long as the artificial flooding continued, A Maze in Corn could make no use at all of the flooded property, which clearly meets this criterion. [ 101 ] In my view, consistent with Manitoba Fisheries , Tener , CPR and Annapolis , the artificial flooding of the property in this case constitutes a constructive taking of the property. Further, the principles of compensation set out in those cases would apply to the

interpretation and application of the compensation provisions of the RRFA and the FCR to the facts of this case. Finally, I am of the view that the DAAB erred in law holding that future and anticipated economic losses, interest and professional and legal costs are not compensable under the RRFA and FCR . 6. Conclusion [ 102 ] For these reasons, I am of the view that this ground of appeal must be answered in the affirmative—that is, compensation for economic loss under

Part 2 of the RRFA includes compensation for future economic loss, including future loss of income, brand damage (goodwill), loss of opportunity to invest (pre and post-judgment interest) and for professional costs, including legal costs. [ 103 ] Further, the findings by the EMO and DAAB that future economic losses, interest and professional costs were not compensable under the RRFA resulted in them making no decisions on the evidence related to those aspects of the claim or value to be attributed to them and refusing to award any compensation for the contested claims.

Thus, the error was material to the determination of compensation and the outcome of the claim. [ 104 ] I would allow the appeal and set aside the decision of the DAAB. VII. REMEDY [ 105 ] Having set aside the decision of the DAAB, it is necessary to determine the appropriate remedy. [ 106 ] A Maze in Corn argues that this Court should either make a determination of compensation based on the evidence that was before the EMO, or refer the matter back to the DAAB.

Both the EMO and the DAAB argue that the matter should be sent back to the EMO for reconsideration. [ 107 ] While the jurisdiction to appeal a decision of the DAAB to this Court is found in section 5(2) of the RRFA , neither it nor the FCR include any provisions regarding the remedial powers on appeal. [ 108 ] In the absence of remedial jurisdiction in the statute granting appellate jurisdiction, resort must be had to The Court of Appeal Act , CCSM c C240 , for that jurisdiction.

That act enables the court to “give any judgment which ought to have been pronounced” and make such “other order as is deemed just” (section 26(1)), provided that a new trial cannot be ordered “unless some substantial wrong or miscarriage” of justice has been occasioned by the error (section 27(1)) (see Ritchot v Law Society of Manitoba , 2010 MBCA 13 at paras 66-68 ; Guttman v Law Society of Manitoba , 2010 MBCA 66 at para 69 ).

[ 109 ] As noted by Hamilton JA, for the Court in Ritchot , “[o]n a successful appeal of an administrative tribunal’s decision, this court often prefers to refer the matter at issue back to the tribunal for reconsideration” (at para 68), but she declined to do so in that case. Thus, section 26(1) encompasses the jurisdiction to either make a decision in place of the original court or tribunal or return the matter for reconsideration. [ 110 ] The Supreme Court of Canada commented on remedial discretion in Vavilov .

The majority stated: - “it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision” (at para 141); - there are limited scenarios in which it may be appropriate to decline to do so, which would include where “a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose” (at para 142); and - “[e]lements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter” ( ibid ). [ 111 ] There are factors that support both positions.

This matter has been outstanding since 2019, almost four years, and sending it back for a new hearing will extend that time further and result in added costs and expenses.

Given that administrative procedures are intended to provide a quick resolution of a claim, this matter has been anything but quick, which militates in favour of this Court making the decision. [ 112 ] However, there are several factors that favour an administrative reconsideration: - the primary fact-finder is the EMO ( RRFA section 3(2) ; FCR sections 9 , 10(1) ) and it has not made any factual findings regarding the disputed claims, so neither this Court nor the DAAB has the required evidentiary findings before it; - further, a reconsideration would benefit from more concrete evidence of the effect of the flooding on A Maze in Corn’s business in the subsequent years than was available at the earlier hearing; - while the DAAB can accept further evidence, it is mandated to start with the decision of the EMO; - the EMO is required to determine the appropriate valuation method for determining economic loss, which it has not done ( FCR section 7(3) ); - the DAAB is required to follow the EMO’s determination as to valuation method unless it determines that another is more appropriate ( FCR section 11(12) ), which it could not do if the matter was returned to it, instead of the EMO, for reconsideration; - this Court has now provided guidance as to the

interpretation of the economic loss provisions of the RRFA , so the application of the statutory provisions to the evidence on the reconsideration will be a decision of first instance; if the decision is appealed, the appellate court would benefit from the factual and legal findings and analysis of the EMO; - if the matter is referred to the DAAB, the parties would be deprived of the right to appeal any findings of fact or mixed fact and law, as an appeal from a decision by the DAAB is limited to questions of law; and - the finding that A Maze in Corn is entitled to full compensation for reasonable interest and professional fees will reduce the negative impact on it of referring this matter for a reconsideration. [ 113 ] Balancing all of these factors, I am of the view that the appropriate remedy in this case is to refer this matter back to the EMO for reconsideration of the application for compensation for future and anticipated economic loss, brand damage, loss of opportunity to invest, interest and professional costs including legal costs, taking into account the principles set out herein.

VIII. DECISION AND COSTS [ 114 ] For the above reasons, I would grant the appeal and refer the determination of the amount of compensation to the EMO, applying the principles set out herein to its decision. [ 115 ] A Maze in Corn indicated at the hearing that it was not asking for costs on the appeal, so I would make no order for costs. JA I agree: JA I agree: JA

APPENDIX

Part 2 of The Red River Floodway Act , CCSM c R32 , states:

PART 2 COMPENSATION FOR ARTIFICIAL FLOOD DAMAGE AND ECONOMIC LOSS Claims for artificial flood damage and economic loss 2(1) A person may claim compensation under this

Part if (

a) artificial flooding has damaged the person’s eligible property or caused the person to have an economic loss; and (

b) the person meets any applicable eligibility requirements set out in the regulations. Application for compensation 3(1) A person who wishes to claim compensation must file an application for compensation in accordance with the regulations and must comply with the other requirements of the regulations. Manitoba Emergency Management Organization determines claims 3(2) After a person files a compensation application and complies with the requirements of the regulations, the Manitoba Emergency Management Organization must (

a) determine whether the claimant meets any applicable eligibility requirements set out in the regulations; (

b) if the claim relates to property damage, determine whether artificial flooding damaged the property and whether it is eligible property; (

c) if the claim relates to economic loss, determine whether artificial flooding caused the loss and whether it is an eligible loss; (

d) assess the value of the damage or loss; (

e) evaluate whether and to what extent the claimant may be entitled to receive assistance or compensation under another program of the Government of Manitoba or Canada or a local government; and (

f) determine the amount of any compensation to be awarded under this Act in respect of the damaged property or loss. Agreements with third parties 3(3) The minister responsible for The Emergency Measures Act , CCSM c E80 , may, on any terms and conditions that he or she considers appropriate, enter into an agreement with a qualified person or organization for the performance of any of the functions of the Manitoba Emergency Management Organization under subsection (2).

No claimant contribution 4(1) A compensation award is to be based on the full value of the artificial flood damage to the claimant’s eligible property or of his or her economic loss due to artificial flooding, as assessed by the Manitoba Emergency Management Organization, without requiring the claimant to bear a portion of the damage or loss. Compensation not conditional on repair or replacement 4(2) A compensation award is not conditional on the claimant repairing or replacing the damaged property.

Claimant’s acts may affect compensation 4(3) Despite subsection (1), a claimant’s compensation may be reduced in whole or

part if the claimant’s acts or failure to act allowed the damage or loss to occur or contributed to its occurrence. Effect of compensation under other programs 4(4) Compensation under this Part shall be reduced to the extent that the claimant is entitled to receive assistance or compensation under another program of the Government of Manitoba or Canada or a local government, including, but not limited to, the disaster financial assistance program and the Manitoba crop insurance program.

Appeals 5(1) A person whose application for compensation is partly or wholly refused or who disagrees with any part of a determination, assessment or evaluation under subsection 3(2) may appeal to the Disaster Assistance Appeal Board appointed under The Emergency Measures Act . Appeal to Court of Appeal 5(2) A decision of the Disaster Assistance Appeal Board under subsection (1) may be appealed upon a question of law to The Court of Appeal with leave granted by a judge of that court. Application for leave to appeal 5(3) An application for leave to appeal must (

a) state the grounds of the appeal; and (

b) be made within 30 days after the date of the decision sought to be appealed, or within such further time as the judge under special circumstances allows. Notice of the application must be served on the government in accordance with

section 11 of The Proceedings Against the Crown Act , CCSM c P140 . Government to provide compensation 6 When a person is awarded compensation because of a determination under subsection 3(2) or an appeal decision under

section 5, the government must provide the person with compensation in the amount awarded, subject to any applicable provisions of the regulations. No duplication of compensation claims and proceedings 7 A person may do either of the following, but not both: (

a) claim compensation under this Part for property damage or economic loss; or (

b) commence court proceedings in respect of property damage or economic loss caused by artificial flooding, to be determined in accordance with generally applicable legal principles. The Floodway Compensation Regulation , Man Reg 209/2009 , states: 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.