Oberg et al. v. Canada (Attorney General), 2012 MBQB 64

• Judge: Perlmutter, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 24, 2012
• Jurisdiction: Manitoba
• Citations: 2012 MBQB 64;(2012), 276 Man.R.(2d) 189 (QB)

Oberg v. Can. (A.G.) (2012), 276 Man.R.(2d) 189 (QB)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. MR.025

Allen Oberg, Ron Flaman, Cam Goff, Kyle Korneychuk, John Sandborn, Bill Toews, Stewart Wells and Bill Woods (plaintiffs) v. Attorney General of Canada (defendant)

(CI 11-01-75257; 2012 MBQB 64)

Indexed As: Oberg et al. v. Canada (Attorney General)

Manitoba Court of Queen's Bench

Winnipeg Centre

Perlmutter, J.

February 24, 2012.

Summary:

The plaintiffs, former board members of the Canadian Wheat Board, claimed declarations that the Marketing Freedom for Grain Farmers Act, S.C. 2011, c. 25 (the New Act), was enacted in violation of s. 47.1 of the Canadian Wheat Board (CWB) Act, and infringed s. 52(1) of the Constitution Act, 1982, and the "rule of law". They moved for an interlocutory order staying and/or suspending the operation and implementation of the New Act, or in the alternative, the operation of Parts I and II of the New Act, as at the date and time of royal assent, pending a decision as to the New Act's validity.

The Manitoba Court of Queen's Bench dismissed the motion. The result turned on the construction of s. 47.1 of the CWB Act and on the legal consequence of the Minister not engaging s. 47.1 prior to introducing Bill C-18, which became the New Act. The merits of the plaintiffs' case were so wanting that the court rejected the motion on that ground alone. It had not been established that there was a serious issue to be tried. If that conclusion was incorrect, the court found that the issues of irreparable harm and balance of convenience did not militate in favour of the remedy sought.

Constitutional Law - Topic 409

Powers of parliament and the legislatures - General - Sovereign body's own restrictions re "manner and form" of subsequent legislation - [See first Injunctions - Topic 1617.2 ].

Constitutional Law - Topic 482

Powers of parliament and the legislatures - Limitations on powers of parliament - Rule of law - [See first Injunctions - Topic 1617.2 ].

Crown - Topic 687

Authority of ministers - Exercise of - Compliance with the rule of law - [See first Injunctions - Topic 1617.2 ].

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - [See second Injunctions - Topic 1617.2 ].

Injunctions - Topic 1607

Interlocutory or interim injunctions - General principles - Requirement of strong prima facie case or appearance of right - [See first Injunctions - Topic 1617.2 ].

Injunctions - Topic 1616

Interlocutory or interim injunctions - General principles - Arguable issues of law involved or serious question to be tried - [See second Injunctions - Topic 1617.2 ].

Injunctions - Topic 1617.2

Interlocutory or interim injunctions - General principles - Preventing statute enforcement or implementation - In 1998, the Canadian Wheat Board (CWB) Act was amended to provide for a 15 person board, with 10 board members to be elected by producers, and s. 47.1 was enacted - The plaintiffs were eight of the 10 board members elected by producers - The CWB Act created a "single desk" for the interprovincial and export marketing and trade in wheat and barley - The plaintiffs were elected on the basis of their support for the single desk - The Minister responsible for the CWB introduced Bill C-18 (which became the Marketing Freedom for Grain Farmers Act, S.C. 2011, c. 25, the "New Act"), without consulting with the CWB board and without holding a producers' vote - The result of the New Act was the elimination of the single desk as western Canadian wheat and barley would no longer be marketed exclusively through the CWB - The plaintiffs claimed declarations that the New Act was invalid, and moved for interlocutory injunctive relief staying or suspending the operation and implementation of the New Act, pending a decision as to its validity - It was the plaintiffs' position that the New Act was enacted in violation of s. 47.1 of the CWB Act - They also relied on s. 52(1) of the Constitution Act, 1982, and the "rule of law" - The Manitoba Court of Queen's Bench dismissed the motion - Section 52(1) of the Constitution Act, 1982, was a remedy provision; it did not create a basis for granting a remedy - The "rule of law" did not establish a remedy unless one could point to the law with which the government action conflicted; the rule of law simpliciter did not form the basis for declaring legislation invalid - Section 47.1 of the CWB Act did not apply - While the Federal Court concluded otherwise in Friends of the Canadian Wheat Board v. Canada (Minister of Agriculture) (2011), the court was not bound by that decision - Moreover, s. 47.1 was not a "manner and form" provision - First, s. 47.1 did not use language showing that Parliament intended, in the face of s. 42(1) of the Interpretation Act, to bind itself or restrict the legislative powers of its members with respect to revamping the "single desk" or repealing the CWB Act - Second, the CWB Act was not of a constitutional or quasi-constitutional nature - Third, a requirement of consent from an entity that did not form part of the legislative structure (i.e., the producers) amounted to a substantive constraint on Parliament's legislative capacity and did not relate to the "manner or form" of its exercise - See paragraphs 9 to 30.

Injunctions - Topic 1617.2

Interlocutory or interim injunctions - General principles - Preventing statute enforcement or implementation - In 1998, the Canadian Wheat Board (CWB) Act was amended to provide for a 15 person board, with 10 board members to be elected by producers, and s. 47.1 was enacted - The plaintiffs were eight of the 10 board members elected by producers - The CWB Act created a "single desk" for the interprovincial and export marketing and trade in wheat and barley - The plaintiffs were elected on the basis of their support for the single desk - The Minister responsible for the CWB introduced Bill C-18 (which became the Marketing Freedom for Grain Farmers Act, S.C. 2011, c. 25, the "New Act"), without consulting with the CWB board and without holding a producers' vote - The result of the New Act was the elimination of the single desk as western Canadian wheat and barley would no longer be marketed exclusively through the CWB - The plaintiffs claimed declarations that the New Act was invalid, and moved for interlocutory injunctive relief staying or suspending the operation and implementation of the New Act - The Manitoba Court of Queen's Bench concluded that the plaintiffs had not demonstrated that there was a serious question to be tried and dismissed the motion on that basis - If that conclusion was incorrect, the court found that the issue of irreparable harm and balance of convenience did not militate in favour of the remedy sought - The weakness of the plaintiff's case reduced the risk that there would be any harm which called for a remedy and increased the risk that an injunction might prevent the enforcement of valid legislation - In the event that irreparable harm ought to be assumed, the public interest in maintaining the New Act pending complete review outweighed the detriment to the plaintiffs and others caused by the New Act - The plaintiffs had not demonstrated that suspending the New Act would provide a public benefit - The assumed benefit to the public interest from the continued application of the New Act had not been overcome - See paragraphs 31 to 82.

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - [See second Injunctions - Topic 1617.2 ].

Trade Regulation - Topic 3704

Marketing of agricultural products - Grain - Canadian Wheat Board - [See first Injunctions - Topic 1617.2 ].

Cases Noticed:

Friends of the Canadian Wheat Board et al. v. Canada (Attorney General) et al. (2011), 396 F.T.R. 308; 2011 FC 1432, not folld. [para. 2].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 8].

Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al., [1994] 7 W.W.R. 420; 95 Man.R.(2d) 241; 70 W.A.C. 241 (C.A.), refd to. [para. 8].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 10].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 14].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 14].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 17].

Canadian Taxpayers Federation et al. v. Ontario (Minister of Finance) et al., [2004] O.T.C. 1115; 73 O.R.(3d) 621 (Sup. Ct.), refd to. [para. 17].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 33].

J-Sons Inc. v. Paterson (N.M.) & Sons Ltd., [1999] Man.R.(2d) Uned. 44; 1999 CarswellMan 167 (Q.B.), affd. [1999] Man.R.(2d) Uned. 53 (C.A.), refd to. [para. 36].

Bank of Montreal v. Superior Management Ltd. et al. (2010), 259 Man.R.(2d) 169; 2010 MBQB 244, refd to. [para. 36].

Law Society of British Columbia v. Canada (Attorney General) et al., [2001] B.C.T.C. 1593; 207 D.L.R.(4th) 705; 2001 BCSC 1593, affd. [2002] B.C.A.C. Uned. 34; 207 D.L.R.(4th) 736; 2002 BCCA 49, refd to. [para. 48].

Weatherill v. Canada (Attorney General) et al. (1998), 143 F.T.R. 302 (T.D.), refd to. [para. 51].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 53].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201; 2000 SCC 57, refd to. [para. 54].

Canada (Attorney General) v. Gould, [1984] 2 S.C.R. 124; 53 N.R. 394, refd to. [para. 56].

Statutes Noticed:

Canadian Wheat Board Act, R.S.C. 1985, c. C-24, sect. 47.1 [para. 4].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 135, No. 117, 1st Sess., 36th Parliament (June 8, 1998), p. 7756 [para. 21].

Hansard - see Canada, Hansard, House of Commons Debates.

Sharpe, Robert J., Injunctions and Specific Performance, Looseleaf (January 2012), paras. 2.160, 2.170 [para. 28].

Counsel:

Colin R. MacArthur, Q.C., and John B. Martens, for the plaintiffs;

Robert MacKinnon and Joel I. Katz, for the defendant.

This motion for an interlocutory injunction was heard before Perlmutter, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre. The following judgment was delivered on February 24, 2012.