Canada (Attorney General) v. Friends of the Canadian Wheat Board, 2012 FCA 183 (2012)

Parts:Canada (Attorney General) v. Friends of the Canadian Wheat Board
Reporting Judge:SHARLOW J.A.
Docket Number:A-470-11
 
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Federal Court of Appeal - Canada (Attorney General) v. Friends of the Canadian Wheat Board [Anonymoused]

Source: http://decisions.fca-caf.gc.ca/en/2012/2012fca183/2012fca183.html

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Federal Court of Appeal

Cour d'appel fédérale

Date: 20120618

Docket: A-470-11

A-471-11

Citation: 2012 FCA 183

CORAM: SHARLOW J.A.

TRUDEL J.A.

MAINVILLE J.A.

Docket: A-470-11

BETWEEN:

ATTORNEY GENERAL OF CANADA , THE MINISTER OF

AGRICULTURE AND AGRIFOOD IN HIS CAPACITY AS

MINISTER RESPONSIBLE FOR THE CANADIAN WHEAT BOARD

Appellants and

FRIENDS OF THE CANADIAN WHEAT BOARD, HAROLD

BELL , DANIEL GAUTHIER, KEN ESHPETER, TERRY BOEHM,

LYLE SIMONSON, LYNN JACOBSON, ROBERT HORNE, WILF

HARDER, LAURENCE NICHOLSON, LARRY BOHDANOVICH,

KEITH RYAN, ANDY BAKER, NORBERT VAN DEYNZE, WILLIAM

ACHESON, LUC LABOSSIERE, WILLIAM NICHOLSON, RENE SAQUET, and

THE CANADIAN WHEAT BOARD

Respondents and

COUNCIL OF CANADIANS, ETC GROUP (ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA

Interveners

Docket: A-471-11

BETWEEN:

MINISTER OF AGRICULTURE AND AGRI-FOOD IN HIS CAPACITY AS

MINISTER RESPONSIBLE FOR THE CANADIAN WHEAT BOARD

Appellant and

THE CANADIAN WHEAT BOARD

ALLEN OBERG, ROD FLAMAN, CAM GOFF, KYLE KORNEYCHUK,

JOHN SANDBORN, BILL TOEWS, STEWART WELLS and BILL WOODS

Respondents and

COUNCIL OF CANADIANS, ETC GROUP (ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA

Interveners

Heard at Ottawa , Ontario , on May 23, 2012.

Judgment delivered at Ottawa , Ontario, on June 18, 2012.

REASONS FOR JUDGMENT BY: MAINVILLE J.A.

CONCURRED IN BY: SHARLOW J.A.

TRUDEL J.A.

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Federal Court of Appeal

Cour d'appel fédérale

Date: 20120618

Docket: A-470-11

Citation: 2012 FCA 183

CORAM: SHARLOW J.A.

TRUDEL J.A.

MAINVILLE J.A.

Docket: A-470-11

BETWEEN:

ATTORNEY GENERALOF CANADA , THE MINISTER OF

AGRICULTURE AND AGRIFOOD IN HIS CAPACITY AS

MINISTER RESPONSIBLE FOR THE CANADIAN WHEAT BOARD

Appellants and

FRIENDS OF THE CANADIAN WHEAT BOARD, HAROLD

BELL , DANIEL GAUTHIER, KEN ESHPETER, TERRY BOEHM,

LYLE SIMONSON, LYNN JACOBSON, ROBERT HORNE, WILF

HARDER, LAURENCE NICHOLSON, LARRY BOHDANOVICH,

KEITH RYAN, ANDY BAKER, NORBERT VAN DEYNZE, WILLIAM

ACHESON, LUC LABOSSIERE, WILLIAM NICHOLSON, RENE SAQUET, and

THE CANADIAN WHEAT BOARD

Respondents and

COUNCIL OF CANADIANS, ETC GROUP (ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA

Interveners

Docket: A-471-11

BETWEEN:

MINISTER OF AGRICULTURE AND AGRI-FOOD IN HIS CAPACITY AS

MINISTER RESPONSIBLE FOR THE CANADIAN WHEAT BOARD

Appellant and

THE CANADIAN WHEAT BOARD

ALLEN OBERG, ROD FLAMAN, CAM GOFF, KYLE KORNEYCHUK,

JOHN SANDBORN, BILL TOEWS, STEWART WELLS and BILL WOODS

Respondents and

COUNCIL OF CANADIANS, ETC GROUP (ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA

Interveners

REASONS FOR JUDGMENT

MAINVILLE J.A.

[1] These appeals concern the orders of Campbell J. of the Federal Court (“Federal Court judge”) dated December 7, 2011 declaring, for the reasons cited as 2011 FC 1432 (“Reasons”), that the Minister of Agriculture and Agri-Food (“Minister”) failed to comply with his statutory duty pursuant to section 47.1 of the Canadian Wheat Board Act , R.S.C. 1985, c. C-24 (“ CWB Act ”), to consult with the Canadian Wheat Board (“CWB”) and to obtain the consent of wheat and barley producers by means of a vote prior to introducing Bill C-18 in Parliament, which resulted in the adoption of the Marketing Freedom for Grain Farmers Act , S.C. 2011, c. 25.

[2] These appeals were consolidated and expedited by orders of the Chief Justice dated respectively February 14 and 17, 2012. The CWB did not participate in these appeals. The interveners were granted leave to intervene on two issues by order of this Court dated April 16, 2012. Motions to quash or, alternatively, to stay these appeals were dismissed from the bench prior to the hearing of the appeals on May 23, 2012. These reasons for judgment concern both appeals, and a copy of thereof shall be placed in each Court file as reasons therein.

[3] These appeals form part of a series of legal proceedings challenging the Marketing Freedom for Grain Farmers Act.

[4] The first proceedings were initiated by the Friends of the Canadian Wheat Board and a number of individual wheat and barley producers who made an application for judicial review in the Federal Court in June 2011 under Federal Court file T-1057-11. The CWB and some of its directors also made a separate application for judicial review in October 2011 under Federal Court file T-1735-11. Although the drafting was slightly different in each application, the judicial declarations sought by all applicants were essentially the same:

a. a declaration that the Minister failed to comply with his statutory duty pursuant to section 47.1 of the CWB Act to consult with the CWB and to obtain the consent of wheat and barley producers by means of a vote held prior to causing to be introduced into Parliament Bill C-18; and b. a declaration that the Minister acted in breach of the legitimate expectations of the CWB and of wheat and barley producers, and contrary to the duty of procedural fairness, in causing to be introduced into Parliament this Bill without first consulting with the CWB and holding a vote among wheat and barley producers.

These judicial review applications were heard and decided together by the Federal Court judge, and the orders issued as a result are now the object of this appeal.

[5] Relying on the declarations of the Federal Court judge issued following these two judicial review applications, some former directors of the CWB filed a statement of claim in the Court of Queen’s Bench of Manitoba seeking declarations that the Marketing Freedom for Grain Farmers Act is invalid and infringes the rule of law, the Constitution Act, 1867 , and the Constitution Act, 1982 on the ground that this new legislation results from illegal actions of the Minister.

[6] An interlocutory order was also sought within the framework of the Manitoba proceedings for the purpose of staying or suspending nunc pro tunc the operation and implementation of the Marketing Freedom for Grain Farmers Act as at the date and time of Royal Assent, pending a decision as to the validity of that legislation. Perlmutter J. refused to grant such an order for reasons dated February 24, 2012 and cited as Oberg et al. v. Canada (Attorney General) , 2012 MBQB 64. An appeal from that judgment to the Court of Appeal of Manitoba is pending.

[7] Also relying on the declarations of the Federal Court judge, in February 2012 a proposed class proceeding on behalf of grain producers who sold grain through the CWB was filed with the Federal Court (T-356-12) seeking (a) an order staying or suspending nunc pro tunc the operation and implementation of the Marketing Freedom for Grain Farmers Act as of the date and time of Royal Assent; (b) a declaration that the Minister’s actions in failing to consult and hold a vote of grain producers prior to introducing that legislation in Parliament infringed paragraphs 2( b ) (freedom of thought, belief, opinion and expression) and 2( d ) (freedom of association) of the Canadian Charter of Rights and Freedoms (“ Charter ”); and (c) substantial damages against the federal Crown. These proceedings are also pending.

[8] It is thus in these highly litigious circumstances that this appeal must be decided.

The context of these proceedings

[9] The marketing of western Canadian wheat grain has had a long and tumultuous history characterized by deep tensions between proponents of open markets, of voluntary collective marketing pools, and of the CWB acting as compulsory marketing agency. For a detailed account of that history, reference may be made to F. Wilson, A Century of Canadian Grain, Government Policy to 1951 (Western Producer Prairie Books, Saskatoon, 1978); Vernon C. Fowke, The National Policy and the Wheat Economy (University of Toronto Press, Toronto, 1957); Vernon C. Fowke, Canadian Agricultural Policy, The Historical Pattern (University of Toronto Press, 1946, reprinted 1978).

[10] The CWB was established by Parliament in 1935 by the Act to provide for the Constitution and Powers of the Canadian Wheat Board , 25-26 George V, c. 53. The powers and mandate of the CWB have considerably evolved since that time through numerous legislative amendments, regulations and Orders in Council.

[11] The CWB’s operations today concern principally wheat and barley produced in a “designated area” defined under subsection 2(1) of the CWB Act as comprising Manitoba, Saskatchewan and Alberta and that part of the Province of British Columbia known as the Peace River District.

[12] For most of its history, the operations of the CWB have been governed by four fundamental principles:

a. grain marketing monopoly : subject to certain regulatory exceptions, such as animal feed grain, Part IV of the CWB Act prohibits all persons other than the CWB from engaging in the sale of wheat and other designated grains that are destined for export from Canada or for consumption in Canada;

b. compulsory price pooling : grain farmers deliver their grain crop to the Board through “pools” contemplated by Part III of the CWB Act ; under the pooling system, each producer receives an interim payment (based on estimated market returns) for the same grain delivered regardless of the time of delivery, and is entitled to receive a final...

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