Indexed As: Friends of the Canadian Wheat Board et al. v. Canada (Attorney General) et al. Federal Court Campbell, J. December 7, 2011.

Transcription

1 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 and Rene Saquet (applicants) v. Attorney-General of Canada, The Minister of Agriculture and Agrifood in His Capacity as Minister Responsible for the Canadian Wheat Board 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 (intervenors) (T ) The Canadian Wheat Board, Allen Oberg, Rod Flaman, Cam Goff, Kyle Korneychuk, John Sandborn, Bill Toews, Stewart Wells and Billwoods (applicants) v. The Minister of Agriculture and Agrifood in His Capacity as Minister Responsible for the Canadian Wheat Board (respondent) and PCSC - Producer Car Shippers of Canada Inc., Logan Connor, Leonard Gluska, Bill Woods, Myron Finlay, Howard Vincent, Glen Harris, and Tim Coulter (intervenors) (T ; 2011 FC 1432) Indexed As: Friends of the Canadian Wheat Board et al. v. Canada (Attorney General) et al. Federal Court Campbell, J. December 7, Summary: Section 47.1 of the Canadian Wheat Board Act required the Minister of Agriculture to consult with the Canadian Wheat Board and to gain the consent of Western Canadian wheat and barley producers respecting proposed changes to the well-established process of marketing the grains in Canada. Currently, the Minister was unilaterally proceeding to revolutionize the process by securing the imminent passage of legislation. The applicants each requested a declaration that the Minister's conduct was an affront to the rule of law. The Federal Court granted the applications. Crown - Topic 687 Authority of ministers - Exercise of - Compliance with the rule of law - Section 47.1 of the Canadian Wheat Board Act required the Minister of Agriculture to consult with the Canadian Wheat Board (CWB) and gain the consent of Western Canadian wheat and barley producers respecting proposed changes to the well-established process of marketing the grains in Canada - Currently, the Minister was unilaterally proceeding to revolutionize the process by securing the imminent passage of legislation - The applicants each requested a declaration that the Minister's conduct was an affront to the rule of law - The Federal Court granted the applications - The court accepted the applicants' argument that s applied to changing the CWB's structure because the democratic structure was important to Canada's international trade obligations under NAFTA, which supported the argument that Parliament's intention in s was not to alter the structure without

2 consultation and consent - However, the applicants' statutory interpretation should not be considered to the exclusion of the Minister's interpretation which focused on the words used in s itself - By construing the liberal interpretation of the Act which best ensured the attainment of its objects, the court found that it was intended to require the Minister to consult and gain consent where an addition or subtraction of particular grains or types of grain from the marketing regime was contemplated, and also respecting a change to the CWB's democratic structure (e.g., dismantling the CWB). Statutes - Topic 501 Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Crown - Topic 687]. Statutes - Topic 3005 Interpretation - Construction where intention is plain - General principles - Liberal construction - [See Crown - Topic 687]. Trade Regulation - Topic 3704 Marketing of agricultural products - Grain - Canadian Wheat Board - [See Crown - Topic 687]. Cases Noticed: Reece et al. v. Edmonton (City), [2011] A.R. TBEd. AU.012; 2011 ABCA 238, refd to. [para. 3]. Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 32]. Statutes Noticed: Canadian Wheat Board Act, R.S.C. 1985, c. C-24, sect [para. 5]. Authors and Works Noticed: Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), generally [para. 3]. Counsel: Anders Bruun, for the applicants, 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 and Rene Saquet (T ); Joel Katz, for the respondents, Attorney General of Canada, the Minister of Agriculture and Agrifood in His Capacity as Minister Responsible, for the Canadian Wheat Board (T ); John Lorn McDougall, Q.C., and Matthew Fleming, for the respondent, The Canadian Wheat Board (T ); Stephen Shrybman, for the intervenors, Council of Canadians, ETC Group (Action Group on Erosion, Technology and Concentration), Public Service Alliance of Canada and Food Secure Canada (T );

3 John Lorn McDougall, Q.C., and Matthew Fleming, for the applicants, The Canadian Wheat Board, Allen Oberg, Rod Flaman, Cam Goff, Kyle Korneychuk, John Sandborn, Bill Toews, Stewart Wells and Bill Woods (T ); James E. McLandress, for the applicants (T ); Joel Katz, for the respondents, The Minister of Agriculture and Agrifood in his capacity as Minister Responsible, for the Canadian Wheat Board (T ); John B. Martens and Colin R. Macarthur, Q.C., for the intervenors, PSCS - Producer Car Shippers of Canada Inc. (Producer Car Shippers), Logan Connor, Leonard Gluska, Bill Woods, Myron Finlay, Howard Vincent, Glen Harris, and Tim Coulter, on their own behalf and on behalf of the members of Producer Car Shippers (T ). Solicitors of Record: Anders Bruun, Winnipeg, Manitoba, for the applicants, 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 and Rene Saquet (T ); Myles J. Kirvan, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents, Attorney General of Canada, The Minister Agriculture and Agrifood in his Capacity as Minister responsible for the Canadian Wheat Board (T ); Myles J. Kirvan, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents, Minister of Agriculture and Agrifood in his capacity as Minister Responsible for the Canadian Wheat Board (T ); Fraser Milner Casgrain, LLP, Toronto, Ontario, for the respondent, for the respondent, the Canadian Wheat Board (T ); Fraser Milner Casgrain, LLP, Toronto, Ontario, for the applicants, the Canadian Wheat Board, Allen Oberg, Rod Flaman, Cam Goff, Kyle Korneychuk, John Sandborn, Bill Toews, Stewart Wells and Bill Woods (T ); James E. McLandress, Winnipeg, Manitoba, for the applicants, the Canadian Wheat Board, Allen Oberg, Rod Flaman, Cam Goff, Kyle Korneychuk, John Sandborn, Bill Toews, Stewart Wells and Bill Woods (T ); Sack Goldbatt Mitchell, LLP, Ottawa, Ontario, for the intervenors, Council of Canadians, ETC Group (Action Group on Erosion, Technology and Concentration), Public Service Alliance of Canada and Food Secure Canada (T ); Aikins MacAuley & Thorvaldson, LLP, Winnipeg, Manitoba, for the intervenors, PCSC - Producer Car Shippers of Canada Inc. (Producer Car Shippers), Logan Connor, Leonard Gluska, Bill Woods, Myron Finlay, Howard Vincent, Glen Harris, and Tim Coulter, on their own behalf and on behalf of the members of Producer Car Shippers (T ). These applications were heard at Winnipeg, Manitoba, on December 6, 2011, by Campbell, J., of the Federal Court, who delivered the following decision on December 7, Applications granted.

4 Editor: Jana A. Andersen Statutes - Topic 501 Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - Section 47.1 of the Canadian Wheat Board Act required the Minister of Agriculture to consult with the Canadian Wheat Board (CWB) and gain the consent of Western Canadian wheat and barley producers respecting proposed changes to the wellestablished process of marketing the grains in Canada - Currently, the Minister was unilaterally proceeding to revolutionize the process by securing the imminent passage of legislation - The applicants each requested a declaration that the Minister's conduct was an affront to the rule of law - The Federal Court granted the applications - The court accepted the applicants' argument that s applied to changing the CWB's structure because the democratic structure was important to Canada's international trade obligations under NAFTA, which supported the argument that Parliament's intention in s was not to alter the structure without consultation and consent - However, the applicants' statutory interpretation should not be considered to the exclusion of the Minister's interpretation which focused on the words used in s itself - By construing the liberal interpretation of the Act which best ensured the attainment of its objects, the court found that it was intended to require the Minister to consult and gain consent where an addition or subtraction of particular grains or types of grain from the marketing regime was contemplated, and also respecting a change to the CWB's democratic structure (e.g., dismantling the CWB). Statutes - Topic 3005 Interpretation - Construction where intention is plain - General principles - Liberal construction - Section 47.1 of the Canadian Wheat Board Act required the Minister of Agriculture to consult with the Canadian Wheat Board (CWB) and gain the consent of Western Canadian wheat and barley producers respecting proposed changes to the wellestablished process of marketing the grains in Canada - Currently, the Minister was unilaterally proceeding to revolutionize the process by securing the imminent passage of legislation - The applicants each requested a declaration that the Minister's conduct was an affront to the rule of law - The Federal Court granted the applications - The court accepted the applicants' argument that s applied to changing the CWB's structure because the democratic structure was important to Canada's international trade obligations under NAFTA, which supported the argument that Parliament's intention in s was not to alter the structure without consultation and consent - However, the applicants' statutory interpretation should not be considered to the exclusion of the Minister's interpretation which focused on the words used in s itself - By construing the liberal interpretation of the Act which best ensured the attainment of its objects, the court found that it was intended to require the Minister to consult and gain consent where an addition or subtraction of particular grains or types of grain from the marketing regime was contemplated, and also respecting a change to the CWB's democratic structure (e.g., dismantling the CWB).

5 Trade Regulation - Topic 3704 Marketing of agricultural products - Grain - Canadian Wheat Board - Section 47.1 of the Canadian Wheat Board Act required the Minister of Agriculture to consult with the Canadian Wheat Board (CWB) and gain the consent of Western Canadian wheat and barley producers respecting proposed changes to the well-established process of marketing the grains in Canada - Currently, the Minister was unilaterally proceeding to revolutionize the process by securing the imminent passage of legislation - The applicants each requested a declaration that the Minister's conduct was an affront to the rule of law - The Federal Court granted the applications - The court accepted the applicants' argument that s applied to changing the CWB's structure because the democratic structure was important to Canada's international trade obligations under NAFTA, which supported the argument that Parliament's intention in s was not to alter the structure without consultation and consent - However, the applicants' statutory interpretation should not be considered to the exclusion of the Minister's interpretation which focused on the words used in s itself - By construing the liberal interpretation of the Act which best ensured the attainment of its objects, the court found that it was intended to require the Minister to consult and gain consent where an addition or subtraction of particular grains or types of grain from the marketing regime was contemplated, and also respecting a change to the CWB's democratic structure (e.g., dismantling the CWB).