Winnipeg Free Press - PRINT EDITION

Flood-settlement waivers ill-timed

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The Emergency Measures Organization (EMO) compensation program for farmers whose lands were artificially flooded in 2011 due to the province's operation of the Shellmouth reservoir has made no offers of settlement. Yet it has already sent farmers waivers of their right to sue for compensation.

By doing so, it's sown confusion and ill will in its dealings with western Manitoba farmers.

The form of waiver or release farmers have been asked to sign -- called an "acknowledgement and consent" by the province -- is grossly premature.

The province has neither paid nor made offers of compensation to the roughly six dozen farmers who were unable to plant a crop in 2011 because of flooding prolonged by operation of the reservoir. And though the claims negotiation process has yet to begin, EMO has sent farmers a document to sign and return by which they agree, from the outset, to abandon their right to sue if and when awarded compensation.

In a properly structured legal settlement, a waiver isn't sent to loss claimants unless and until a firm offer of specific dollar value is on the table or spelled out in the document. Then, and only then, is it appropriate for someone offered compensation, if satisfied with the offer, to sign a waiver of the right to sue.

EMO's sending out a form of waiver, unaccompanied by any offer of compensation, has understandably puzzled and angered farmers. The affected farmers are rightfully reluctant to sign a waiver before they know how much the province will pay them.

The province has said its "acknowledgement and consent" was sent out merely to apprise farmers they can't both collect program compensation and sue for damages.

But a no-double-recovery policy is pretty much the norm for government disaster-compensation packages. Moreover, if EMO's motive was merely to educate farmers about the program, it could have simply sent them a letter confirming the policy. There was no need to seek signatures on a binding legal document right from the get-go. The farmers, not surprisingly, view the requested waivers as an intimidation tactic.

EMO's clumsy and legally dubious handling of the compensation program has hindered, not encouraged, settlement of the farmers' claims.

The province should immediately withdraw its demand for waivers. It is wrong to seek blanket immunity from litigation before the claims process has even begun.

When it tenders formal offers of settlement to the farmers, it can then, properly and in the normal course, request waivers in exchange for payment.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition June 5, 2014 A12

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