Where Do We Go From Here?
(version française)
Dear fellow Intrawest and Embarc owners,
I read, heard and felt the frustration and disillusion permeating your Facebook posts. The recent decision of the Federal Court of Appeal accelerated a rising awareness among members that we have been and continue to be, like it or not, stuck with a deeply unethical business model that Intrawest Corporation set in motion and that DRI magnified when it purchased Embarc interests. I decided to write this post when I read Michel’s recent post in the Club Intrawest Owners Group (CIOG) Facebook group. Michel, well said. I know your sentiment echoes strongly amidst the thousands of members who are coming to terms with what they truly own: a mere right of occupancy secondary to DRI making our so-called-members-only-vacation-homes commercially available to the general public at a price often less than that of our maintenance fees. I share that frustration. Now, what should we do with this frustration?
A popular idea is to litigate our way through and through, either to get a full reimbursement, partial reimbursement and/or force DRI to implement Intrawest Corp and DRI promises at the time of sale (for example). Litigation is appealing right now because getting adversarial may have a soothing effect on our desire to exact compensation for being had. I get it. I’m a member of the Quebec Bar and I have seen my fair share of litigation. Let me say at the outset that the VCC is not and will not set aside litigation options when it becomes the best option available to us. And, until such time as it may become the best option, we are preparing for it. To be clear, the VCC is not bent on busting up the trust and liquidating Club assets and ending vacations in our Club. I for one have thoroughly enjoyed my vacation experiences in the Club! So what has the VCC been doing exactly if not going all out with the litigation option?
We have decided to follow this 9 step trajectory. It is now time to share with you what the VCC is doing behind the scenes:
Legitimacy. It all starts with our actions being legitimate, that is, in the interest of fellow members. To this end, we are conducting a very detailed survey of members. If you have not taken it, now is the time. Why this survey? The VCC wants to advocate, on behalf of members, what members really want. We want to make it clear for DRI that we cannot be characterized as a bunch of a few radicals and rebels with wildly unbelievable claims. It all starts with legitimacy. Legitimacy starts with having credible survey results allowing us to back up claims of under what conditions and beliefs members made their purchase(s), what were the key reasons why they bought, were they told that the Board of their Club was fully controlled by Intrawest Corp (or DRI since the sale) and not by individual members, what objectives do they consider priorities, etc.. This survey is ongoing. We have now over 400 answers. We need more. Please submit your answers.
Craft a Vision statement. No, not a boring corporate vision statement to hang on the conference room wall. More something that accurately depicts what members need in order to be happy with their Club. Something depicting the Club operating under an ethical business model. I am a firm believer that it all starts with knowing what we want. The VCC accordingly met for an all day meeting on 23 June and we crafted a Vision statement that you will find at the end of this post, below.
Decide on a Mission statement. The Mission statement is derived from the Vision. It tells us what we will do to to achieve our Vision. And, since Embarc Club is managed by a DRI-controlled Board, we need our own association to be the true voice of members, unfettered and unshackled from DRI corporate interests. On a tentative basis, we are calling this yet-to-be-created association Embarc Owners Alliance. We will undertake consultations in August to offer viable name choices to CIOG and see what is favored by the membership. The Mission will be the Mission of that new Association. The Mission statement is also copied below.
Derive the Values Statement. The Values statement explains what values will be first and foremost in mind during our journey towards the achievement of our Vision. It says how will achieve the Mission. You can find the Values statement at the end of this text.
Firm up Roles & Responsibilities. Each VCC Member has agreed to take a leadership role in one or several specific areas. We have also defined additional support roles to the VCC. The current VCC composition is as follows:
Media Relations Lead. Secure outcome: coherent, effective and timely communications with media representatives. Facilitate the development and maintenance of VCC approved media key messages and information kits. Act as spokesperson with media representatives. Thanks to Patty Frawley for accepting this role.
Communications Lead. Secure outcome: coherent and effective communications with potential, new and actual Embarc members. Facilitate the development and execution of an annual Communications Plan supporting the VCC Annual Operational Plan. Thanks to Chantal Desjardins for accepting this role.
Government Relations Lead. Secure outcome: foster awareness, education and ultimately renewed consumer protection laws specific to the timeshare industry. Facilitate the development of a VCC approved Annual Lobbying Plan, match resources to Plan and supervise execution. Thanks to Mike Berthiaume for accepting this role.
Membership & Mobilization Lead. Secure outcome: recruit and retain Embarc Members into a new Embarc Owners Alliance. Develop and maintain Alliance recruitme nt and renewal processes. Maintaining EOA members list. Guide members / answer queries Recommend / Match volunteer applications with volunteering opportunities. The VCC thanks Daniel Bélanger for his past involvement and dedication in fulfilling this position. Daniel had to step down due to conflicting professional commitments. We are in the process of recruiting someone for this position.
Education Lead. Secure outcome: raise awareness & education of Embarc potential and actual members. Develop and maintain education content and materials for potential, new and current Embarc members. We are in the process of recruiting someone for this position.
Administration Lead. Secure outcome: ensure compliant governance of Alliance. Complete and maintain government Association registrations and returns. Complete and maintain lobbying registrations. Prepare and issue meeting agendas. Take, finalize and follow-up on action items and minutes. Coordinate all related administrative requirements for the Alliance. We are in the process of recruiting someone for this position.
Legal Services Lead. Secure outcome: effective and efficient alignment of legal services provided by Geldert Law and other retained law firms with VCC Strategic Objectives. Facilitate the development of VCC approved Legal Services objectives and correspondingly liaise with law firms. I am currently fulfilling this role.
Webmaster. Secure outcome: potential, new and current Embarc members, as well as media representatives and members of the public, can find unbiased Embarc timeshare information and volunteering opportunities. Design and maintain an engaging web site for selected persona. Collaborate with the Education and Communications Leads in the execution of the VCC Operational Plan. Approve access to CIOG JRA web pages. Thanks to Chantal Desjardins for continuing to fill this role until we find a replacement.
Deputy Team Leader. Secure outcome: add stability and depth to VCC / Alliance. Handle special projects delegated by VCC / Alliance. Liaise with external ad hoc volunteers. Actively ensures VCC dynamism (and renewal when required). Replace Team Leader as necessary. Thanks to Jonathan Mayer for accepting this role.
Team Leader. Secure outcome: continued development of strong Embarc members advocacy via a motivated, effective and engaged Alliance. Promote teamwork among VCC and alignment / focus on VCC strategic objectives. Chairs VCC / Alliance Meetings. Act as spokesperson when required. Thanks to all VCC Members who have entrusted me with the leadership of our team.
Strategic Advisors. [not on the VCC] Secure outcome : add strategic corporate, industry and business acumen, government relations depth and subject matter expertise in areas needed by the VCC. Attend Strategic Advisor Board meetings. Review & provide advice in their area of expertise on materials sent by VCC / Alliance. Facilitate government relations. Strategic Advisors will be introduced to you progressively over the next months.
6. Set the Strategic Objectives. With the Vision, Mission and Values set, the VCC, in July, came up with a list of approximately thirty (30) strategic objectives which, when all realized, would fully realize the Vision. For each of the 30 objectives, we have assigned a legitimacy score (to which extent is this wanted by members according to the survey?), a difficulty score (can we achieve it on our own or do we need the collaboration of DRI?), a priority score (which depends on legitimacy and difficulty, i.e. something that is top priority for members and low difficulty will score high on priority) and phasing (the rough order in which that objective would be tackled depending on its priority). We can only progressively unveil these objectives as to maximize our chances of success in pursuing these objectives - too much disclosure here would work against us. We will finish and ”set” version 1.0 of this list of strategic objectives by 31 July.
7. Build the Operational Plan. The VCC will craft this Plan during August. The Operational Plan answers who does what when and how, under what conditions and with what contingency plans and fallback options. Litigation options and hypothesis are evaluated in this Plan. We consider using several options other than and/or in combination with litigation. We aim to finish our draft by mid-August, have it reviewed by a select few strategic advisors and finalize it by the end of August. In the second half of August, 3 members of the VCC which form the Legal Services Committee (2 lawyers and 1 dentist) (there is surely a joke to be made about that combination but somehow it escapes me right now) will formulate recommended legal services to obtain from Geldert Law. The VCC as a whole will discuss and develop a consensus by the end of August, in consultation with a few strategic and legal advisors.
8. Start Execution. The Plan is set in motion in September 2017. Our own association will be formally created. Legal Services requests will be initiated. We will ask that you support this new association. We will have strength in numbers. We will keep the CIOG informed (via the newsletter and this Facebook group) throughout and consult and engage with the membership whenever possible and warranted.
8. Establish sound Association Governance. In the next twelve months or so, in parallel to executing our plan, the VCC will progressively establish sound governance principles and bylaws for that new association in order to maximize the likelihood that the new association remains completely aligned with the true interests of members in relation to Embarc Club.
I took the time to explain and unveil what the VCC Team is doing because there is mounting pressure from a lot of directions that we should commence litigation. The VCC takes very seriously the trust of Joint Retainer Agreement (JRA) members in instructing Geldert Law on their behalf. Please note that the VCC will develop and always remain open to consider litigation proposals that contain the following six ingredients:
Cause of action: Any lawsuit needs a clearly articulated cause of action in law. Saying “they cheated” is obviously not enough. Also, that cause of action may need to be articulated in civil law, given that many of us purchased in Tremblant while being residents of Quebec, and in common law for other provinces. There can also be several concurrent causes of action.
Remedy sought. What remedy is sought in the court? That remedy needs to be logically and legally tied with the cause of action. Full reimbursement for a contract void ab initio? Partial reimbursement? Court-imposed implementation of a member-only controlled Embarc Board? A combination thereof?
Logically Related Class. The cause of action has a huge impact on the eligible class in a class action lawsuit. For example, the Martin Robichaud class action lawsuit appears to have been defined in a way that makes only purchasers of points in Quebec, after 2007 eligible (we need to confirm that). The point is, how can we define the best causes of action in a way that allows most, if not all members to be eligible? Or perhaps more than one class action is needed?
Sufficient & Related Evidence. Depending on the cause of action, defined class and remedy sought, we need to have at our disposal and/or have access to sufficient and pertinent evidence. Again, what most laymen think is “evidence” in the eye of the law is plainly superfluous. It takes a trained lawyer to ascertain what is the needed and considered sufficient evidence to bring a lawsuit to successful resolution and that is directly tied with the selected cause of action, the remedy sought and the related class.
Right Jurisdiction. Where do we sue? Delaware? BC? Ontario? Quebec? A lot of possible answers with likely jurisdictional challenges and corresponding chances of success - or lack thereof. If we do not choose the optimal jurisdiction, we may spend way too many dollars only to see the lawsuit quashed early in the process for lack of jurisdiction. Conversely, it may be advantageous to risk a higher difficulty jurisdiction because the substantive law would be more sympathetic to individual members than to corporate interests. This is not an easy decision and cannot be decided lightly. It needs to be a legally informed decision.
Benefit to members. The lawsuit has to ultimately benefit members. While this may seem obvious, I was made aware of several tentative litigation ideas which consist of attacking DRI’s business model on the basis of potential fraud but upon closer examination, even if successful, some of these litigation ideas need to be undertaken by the government, do nothing for members and may backfire on us to the extent the DRI-controlled Embarc Board uses our maintenance fees to hire and pay lawyers to defend the Intrawest Corp / DRI business models while claiming to defend Embarc Club.
The VCC discloses the above trajectory, without revealing details that would adversely impact our chances of success, in the hope that you will support our efforts, help us stay the course set above and, when the time comes, support our new Association.
Stay vacationed, but be aware!
Federal Court of Appeal Decision: http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/232795/index.do
CIOG Press Release: www.citheownersgroup.org/gst-pressrelease