IN THE COURT OF APPEAL

File No: CI 12-01-77146 IN THE COURT OF APPEAL BETWEEN: An intended appeal of the Plaintiffs from the decision of the Honourable Justice R. Dewar of the Manitoba Court of Queen s Bench dated December 31, 2014. CLIFFORD J. ANDERSON, KURVIS ANDERSON, BERTHA TRAVERS, PRISCILLA ANDERSON, LILLIAN TRAVERSE, MATHEW TRAVERSE, MELLONEY FRANCOIS, MARY STAGG, NORMAN STAGG, DAUPHIN RIVER FISHERIES COMPANY LTD. - and - (Plaintiffs) Appellants THE GOVERNMENT OF MANITOBA, THE ATTORNEY GENERAL FOR CANADA AND THE MANITOBA ASSOCIATION OF NATIVE FIREFIGHTERS INC. -and- (Defendants) Respondents DAUPHIN RIVER FIRST NATION, LAKE ST. MARTIN FIRST NATION, LITTLE SASKATCHEWAN FIRST NATION AND PINAYMOOTANG FIRST NATION Third Parties Proceeding under The Class Proceedings Act, C.S.S.M. c. C130 NOTICE OF MOTION McKENZIE LAKE LAWYERS LLP 1800 140 Fullarton Street London, ON N6A 5P2 Tel: 519-672-5666 Fax: 519-672-2674 Michael Peerless, LSUC #34127P William Jenkins, LSUC #10055D Michael Saelhof, LSUC #59701O TRONIAK LAW 1000-444 St. Mary Ave. Winnipeg, MB R3C 3T1 Tel: 204-947-1743 Fax: 204-947-0101 Dennis Troniak, LSM #1977074 Lawyers for the Plaintiffs

2 File No: CI 12-01-77146 IN THE COURT OF APPEAL BETWEEN: An intended appeal of the Plaintiffs from the decision of the Honourable Justice R. Dewar of the Manitoba Court of Queen s Bench dated December 31, 2014. CLIFFORD J. ANDERSON, KURVIS ANDERSON, BERTHA TRAVERS, PRISCILLA ANDERSON, LILLIAN TRAVERSE, MATHEW TRAVERSE, MELLONEY FRANCOIS, MARY STAGG, NORMAN STAGG, DAUPHIN RIVER FISHERIES COMPANY LTD. - and - (Plaintiffs) Appellants THE GOVERNMENT OF MANITOBA, THE ATTORNEY GENERAL FOR CANADA AND THE MANITOBA ASSOCIATION OF NATIVE FIREFIGHTERS INC. -and- (Defendants) Respondents DAUPHIN RIVER FIRST NATION, LAKE ST. MARTIN FIRST NATION, LITTLE SASKATCHEWAN FIRST NATION AND PINAYMOOTANG FIRST NATION Proceeding under The Class Proceedings Act, C.C.S.M. c. C130 Third Parties NOTICE OF MOTION TAKE NOTICE that the Appellants (Plaintiffs) will make a motion before the Honourable Chambers Judge of the Manitoba Court of Appeal on a date to be determined or as soon thereafter as the matter can be heard, at the Manitoba Law Courts Building, 100E, 408 York Avenue, Winnipeg, Manitoba R3C 0P9. The motion is for an Order:

3 1. Granting the Appellants (Plaintiffs) leave to appeal the Manitoba Court of Queen s Bench decision of the Honourable Justice R. Dewar dated December 31, 2014 denying certification of the within action as a class proceeding pursuant to the Class Proceedings Act, C.C.S.M. c. C130; and 2. Such further and other relief as the nature of the case and the circumstances may require; AND TAKE NOTICE that the grounds for the motion and the grounds of the intended appeal are as follows: 3. The Class Proceedings Act, C.C.S.M. c. C130, sections 2, 4, 6, 7, 8, 12 & 36(4), 37(1); 4. Queen s Bench Rules, 12, 37 & 39; 5. The Court of Appeal Act, CCSM c C240, section 26; 6. The Court of Appeal Rules, 3.1 & 33(1); 7. There is good reason to doubt the correctness of the decision in question and the proposed appeal involves matters of such importance that they warrant the attention of the court such that leave to appeal ought to be granted; 8. The motion judge erred by failing to state and apply the correct test on a motion for certification of a class proceeding; 9. There are conflicting decisions of other judges in Manitoba and elsewhere on the matters involved in the proposed appeal and it is desirable that leave be granted;

4 10. There is good reason to believe that the issues determined on appeal will be significant in determining similar disputes which are likely to arise in the future and which are important to the public at large; 11. The issues raised in the within appeal form an arguable case of substance and hold a reasonable prospect of success; 12. His Lordship erred in law with respect to the requirement that the pleadings disclose a cause of action (i.e. section 4(a) of the Class Proceedings Act), specifically: a. in concluding that the circumstances could not give rise to a fiduciary duty on the part of the Governments of Manitoba and Canada; and, b. in concluding that fiduciary law should only arise where no other remedy exists; 13. His Lordship erred in law by admitting and considering evidence in respect of the s. 4(a) (cause of action) certification criterion which runs counter to the Plaintiffs pleading. Specifically, his Lordship erred in holding that the claims related to post-evacuation care: a. must be analyzed as if Manitoba has not been found liable for the flooding simply because those claims were not certified; and, b. should be assessed from the viewpoint that the flooding had been a natural disaster ; 14. His Lordship made several conclusions on the merits of the action in order to support various aspects of his decision. Merits determinations are prohibited on a motion for

5 certification under the Class Proceedings Act. Specifically, His Lordship erred in concluding that, a. at the highest, Manitoba could only be found to have caused flooding in some of the affected areas; b. some of the flooding occurred because ground water levels were too high; c. a high water table was not necessarily caused by water from Lake Manitoba; d. government officials should be afforded significant leeway in their estimation of the situation in an abnormal flood year; and, e. the flooding which occurred on the 4 First Nation Reserves is properly characterized as a natural disaster ; 15. His Lordship erred in law with respect to the definition of the proposed class: a. in limiting the proposed class definition to only those people who were living on reserve and directly affected by the flood ; b. in considering only the lost opportunity to live on reserve and not the personal property damage sustained by individuals living off reserve; c. in excluding the estates of individuals who died subsequent to their evacuation; and, d. in holding that if this action is ultimately certified, estate representatives can apply to be added to the class;

6 16. His Lordship erred in law with respect to the common issues. Specifically, Justice Dewar failed to deal with the common issues as needing only to materially advance the litigation for the class, as opposed to resolving, in total, the claims of the class. As such, his Lordship erred: a. in holding that all class members must have been impacted in the same way; b. in holding that the property of every plaintiff must have been impacted in the same manner; c. in holding that the circumstances and nature of the harm suffered must be identical across all class members; d. by holding, with respect to the proposed common issues related to nuisance (#2 and #3), that those two common issues would require an examination of the circumstances of each individual class member; e. in concluding that the circumstances and manner of evacuation must be identical for each class member; f. in deciding that the proposed Business Class claims require an assessment of each individual business at the common issues stage to succeed; and, g. in refusing to certify the claim for punitive damages; 17. His Lordship erred in law with respect to the legal test for determining whether a class proceeding was the preferable procedure for the resolution of the common issues. Specifically, Justice Dewar erred:

7 a. in concluding that without the claim for nuisance a class action was no longer the preferable procedure; b. in mandating an onerous course of action for estate claims of deceased individuals who would otherwise be class members; c. in holding that the variance in limitation periods between civil claims and those under the Trustee Act may be problematical ; d. in holding that having many statements of claim issued which contain identical allegations is preferable to a class proceeding; e. in holding that it is preferable that individual plaintiffs determine whether they consider that they have a case, at the front end of the process ; f. in suggesting that test cases and tolling agreements could be used and were preferable to a class proceeding; g. in suggesting that a procedure, which neither the Plaintiffs nor any of the Defendants proposed or indicated was reasonable or preferable for their clients, was preferable; h. in stating that a non-binding ruling in one case would prove useful in the resolution of the actions of the other plaintiffs. It is wrong to conclude that a non-binding judgment is certain to be of any assistance to the remaining plaintiffs; and,

8 i. in holding that it was preferable for a judge to hear the whole case from pleadings to trial judgment; 18. Such further and other grounds as counsel may advise and this Honourable Court may permit. THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion: 19. The Motion Brief (volumes I, II, & III and associated brief of authorities) of the Plaintiffs which was filed with the court for use on the motion before Mr. Justice Dewar. 20. The Reply Motion Brief (volume IV and associated brief of authorities) of the Plaintiffs which was filed with the court for use on the motion before Mr. Justice Dewar. 21. The transcripts of the cross examinations of the Representative Plaintiffs and the witnesses appearing on behalf of the Defendants. 22. Such further and other material as counsel may provide and this Honourable Court may admit. January 28, 2015 MCKENZIE LAKE LAWYERS LLP Suite 1800 140 Fullarton St. London, ON N6A 5P2 Tel: 519-672-5666 Fax: 519-672-2674 Michael Peerless (LSUC #34127P) William Jenkins (LSUC #10055D) Michael Saelhof (LSUC #59701O) TRONIAK LAW

9 1000-444 St Mary Ave Winnipeg MB R3C 3T1 Tel: 204-947-1743 Fax: 204-947-0101 Dennis Troniak (LSM #1977074) Lawyers for the Plaintiffs TO: THE REGISTRAR OF THE COURT OF APPEAL AND TO: MANITOBA JUSTICE Civil Legal Services SOA Room 730 Woodsworth Building 405 Broadway Winnipeg, MB R3C 3L6 W. Glenn McFetridge, Q.C. Gord Hannon Tel: 204-945-2832 Fax: 204-948-2826 Lawyers for the Defendant, Manitoba AND TO: DEPARTMENT OF JUSTICE CANADA 301-310 Broadway Winnipeg, MB R3C 0S6 Paul Anderson Cary Clark Tel: 204-984-7766 Fax: 204-984-5910 Lawyers for the Defendant, Canada AND TO: D ARCY & DEACON LLP 2200 - One Lombard Place Winnipeg, MB R3B 0X7 Brian J. Meronek, Q.C. Tel: 204-925-5355

10 Fax: 204-943-4242 Lawyers for the Defendant, Manitoba Association of Native Firefighters Inc.