Flood victims get second crack at suing Manitoba for 2011 flood

It's been five years since Clifford Anderson and his family were forced out of their home on Pinaymootang (Fairford) First Nation, but for Anderson, it's still as fresh in his mind as if it were yesterday.

Province says if class action is relaunched it will respond accordingly

Clifford Anderson stands on the road leading to his brother's and his late mother's flooded houses. He says the bullrushes are an indication the land is still saturated and has become a swamp.

It's been five years since Clifford Anderson and his family were forced out of their home on Pinaymootang (Fairford) First Nation, but for Anderson, it's still as fresh in his mind as if it were yesterday.

"It's cost lots," he said of the 2011 flood. "Somebody has to pay for what happened to us."

The bullrushes that surround the house remind him that the land has now become a swamp. The house is uninhabitable and inaccessible. The community sits 240 kilometres north of Winnipeg. 

In December, a Manitoba justice ruled that flood victims like Anderson should have another chance at their day in court over what happened in 2011. 

Their effort to bring a class action lawsuit against the province was denied in 2014 but Madam Justice Freda Steel of the Manitoba Court of Appeal disagreed with that call last month. 

Anderson was one of the lead plaintiffs representing flood victims from Pinaymootang, Little Saskatchewan, Dauphin River, and Lake St. Martin. They allege the province flooded them deliberately and they are claiming some $950-million dollars in damages.

"Litigation is always difficult, but especially so when the plaintiffs are economically disadvantaged or vulnerable in other ways. Class actions help level the legal playing field when many plaintiffs with relatively small claims come up against governments or corporations with infinite resources," Steel wrote in her decision on Dec. 31, 2015. "The decision as to whether the flooding on the reserve lands was a natural disaster or caused by the actions of Manitoba is a decision that must be accompanied by significant expert evidence." 

Steel's decision means the issue will likely be heard by the full Court of Appeal within the next few months. 

Flood victims hold renewed hope 

It's giving flood victims of the four First Nations renewed hope that their class action lawsuit, which their legal firm says could — if it is certified — represent some 2,000 people, will eventually go forward. 

Anderson, who was Pinaymootang's flood coordinator during the 2011 flood, said he's still paying off the costs his family incurred when they had to move out of their home in 2011 and into an old RV temporarily, then had to buy another RV, before getting a second home from the band that was half the size of their former home. Anderson said on top of other costs, he spent $15,000 to furnish it. 
People in four Manitoba First Nations say they plan to go back to court in an effort to sue the government of Manitoba in a class action lawsuit over the 2011 flood. (2011 Manitoba Flood, Interlake Region Class Action Facebook page )

He's never applied for compensation because friends that did got "pennies on the dollar" for what they lost, he said. 

Nevertheless, he said he has to remain optimistic he and other flood victims will win their fight with the province.
"Well, there's nothing else. Nobody else is going to compensate me for what I lost, for what my family lost, for what my friends lost, for what my neighbours in the other reserves lost," he said. 

His sons, who at 21 and 27 years old were still at home when the flood hit, still go back to check on the family's home, he said. Anderson's mother has since died, never realizing her dream of returning home where she lived for some five decades. 

It still pains him today. He said a lot of people who lost their homes and possessions in the flood have died in the five years since.

"They'll never see anything. They'll never see justice." 

Anderson said the stress from the flood and its ongoing impact has given him hypertension, and it's affected others' health, too. 

His frustration is evident when he recalls the controversy over the province's planned breach of the dike at the Hoop and Holler bend back in 2011. 

"I think it was within 24 hours, the premier of Manitoba [was] promising all kinds of compensation and restitution for any damages caused by the breach. And this was a little handful of farmers there. And I never heard him once come and say anything out here. Never mind that he never came out here," he said. 

Anderson said the province told the First Nations to build dikes, but came back three times and revised the recommended heights upwards.

"In my view, they knew how much water they were releasing and were going to release by revising the flood forecast. They knew they were flooding us." 

Province's legal fight ends — for now 

Since the flood victims will have to refile their lawsuit, the province's legal response to the lawsuit is "moot" said Steve Ashton, Manitoba's minister responsible for flood issues.

The province fought back and denied responsibility for the 2011 flood, but also said that if it was responsible, so were the victims.

"Manitoba says if the plaintiffs have suffered losses or damages as alleged, which is not admitted, such losses or damages were caused or contributed as a result of the collective or individual negligence of the Government of Canada, the First Nations or the plaintiffs," the province's statement of defense at the time said. 

The province further argued that if it had to pay for losses the plaintiffs incurred because of the 2011 flood, that amount should be deducted from the amount from other payments. 

Ashton said it's too soon to say what the province's response would be if the plaintiffs relaunch their lawsuit. 
Clifford Anderson said many people who lost their homes and possessions in the 2011 flood are still struggling in the aftermath of the disaster, whether in terms of debt or ongoing health problems due to stress. (2011 Manitoba Flood, Interlake Region Class Action Facebook page)

"If they file a legal action, we'll look at it based on its merits and respond accordingly," he said. "Lawsuit or not, look, Manitobans were hard impacted in 2011. These were the hardest hit Manitobans. Our goal is to make a significant difference for them in the future and we've made significant progress. That's really as much as I can say."

Last year, the province and federal government pledged nearly $500 million on flood mitigation in the area. 

Back in Pinaymootang, Anderson said the province's legal action against flood victims still leaves him mystified. 

"I can't understand why they would sue us. I mean, we didn't flood ourselves. It was the province that flooded us deliberately, through the operation of that Portage Diversion and the Shellmouth Dam. They sent all this water here."