Docket: T-1057-11
Docket: T-1735-11
Citation : 2011 FC 1432
Winnipeg,
Manitoba, December 7, 2011
PRESENT: The Honourable Mr. Justice Campbell
Docket: T-1057-11
BETWEEN:
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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
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Applicants
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and
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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
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and
Council of
Canadians, ETC Group
(Action Group
on Erosion,
Technology and
Concentration),
Public Service
Alliance of Canada
and Food
Secure Canada
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Respondents
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Interveners
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Docket: T-1735-11
AND BETWEEN:
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THE CANADIAN WHEAT BOARD, ALLEN
OBERG, ROD FLAMAN, CAM GOFF, KYLE
KORNEYCHUK, JOHN SANDBORN, BILL
TOEWS, STEWART WELLS
AND BILLWOODS
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Applicants
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and
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THE MINISTER OF AGRICULTURE AND
AGRIFOOD IN HIS CAPACITY AS MINISTER
RESPONSIBLE FOR THE CANADIAN
WHEAT BOARD
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Respondent
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and
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PCSC – PRODUCER CAR SHIPPERS OF
CANADA INC., LOGAN CONNOR, LEONARD
GLUSKA, BILL WOODS, MYRON FINLAY,
HOWARD VINCENT, GLEN HARRIS,
AND TIM COULTER
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Interveners
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REASONS FOR ORDERS
[1]
The
present Applications concern the rule of law and the disregard for it by the
Respondent Minister of Agriculture (the Minister).
[2]
The law concerned is s. 47.1 of the Canadian
Wheat Board Act, RSC 1985, c C-24 (the Act) which requires the
Minister to engage in a consultative process with the Canadian Wheat Board
(CWB) and to gain the consent of Western Canadian wheat and barley producers
with respect to proposed changes to the currently well-established process of
marketing the grains in Canada. At the present time, contrary to the
requirements of s. 47.1, the Minister is unilaterally proceeding to
revolutionize the process by securing the imminent passage of legislation.
[3]
A
most recent reminder of the rule of law as a fundamental constitutional
imperative is expressed by Chief Justice Fraser in Reece v Edmonton (City),
2011 ABCA 238 at paragraphs 159 and 160:
The starting point is this.
The greatest achievement through the centuries in the evolution of democratic
governance has been constitutionalism and the rule of law. The rule of
law is not the rule by laws where citizens are bound to comply with the
laws but government is not. Or where one level of government chooses not to
enforce laws binding another. Under the rule of law, citizens have the right
to come to the courts to enforce the law as against the executive branch. And
courts have the right to review actions by the executive branch to determine
whether they are in compliance with the law and, where warranted, to declare
government action unlawful. This right in the hands of the people is not a
threat to democratic governance but its very assertion. Accordingly, the executive
branch of government is not its own exclusive arbiter on whether it or its
delegatee is acting within the limits of the law. The detrimental consequences
of the executive branch of government defining for itself – and by itself – the
scope of its lawful power have been revealed, often bloodily, in the tumult of
history.
When government does not
comply with the law, this is not merely non-compliance with a particular law,
it is an affront to the rule of law itself […].
[Emphasis added]
[4]
The
Applicants each request a Declaration that the Minister’s conduct is an affront
to the rule of law. For the reasons that follow, I have no hesitation in
granting this request.
I. The
Scheme of the Act
[5]
The
CWB is a corporation without share capital that is charged by s. 5 of the Act
with the statutory objective to “market in an orderly manner, in
interprovincial and export trade, grain grown in Canada.” The scheme
of the Act is as follows: by Part III, the CWB is required to buy all
wheat and barley produced in Manitoba, Saskatchewan, Alberta, and the Peace
River District of British Columbia; Part IV prohibits any person other than the
CWB from exporting, transporting from one province to another, selling or
buying wheat or barley, subject to limited exceptions established by the Act
or its regulations; and Part V establishes the mechanisms by which the CWB’s
marketing authority may be altered, and contains s. 47.1, the interpretation of
which is at the centre of the present Applications:
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47.1
The Minister shall not cause to be introduced in Parliament a bill
that would exclude any kind, type, class or grade of wheat or barley, or
wheat or barley produced in any area in Canada, from the provisions of
Part IV, either in whole or in part, or generally, or for any period,
or that would extend the application of Part III or Part IV or both Parts III
and IV to any other grain, unless
(a) the
Minister has consulted with the board about the exclusion or
extension; and
(b) the
producers of the grain have voted in favour of the exclusion or
extension, the voting process having been determined by the Minister.
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47.1 Il ne peut être déposé au
Parlement, à l’initiative du ministre, aucun projet de loi ayant pour effet,
soit de soustraire quelque type, catégorie ou grade de blé ou d’orge, ou le
blé ou l’orge produit dans telle région du Canada, à l’application de la
partie IV, que ce soit totalement ou partiellement, de façon générale ou pour
une période déterminée, soit d’étendre l’application des parties III et IV,
ou de l’une d’elles, à un autre grain, à moins que les conditions suivantes
soient réunies :
a) il a consulté le conseil au
sujet de la mesure;
b) les producteurs de ce grain ont
voté — suivant les modalités fixées par le ministre — en faveur de la mesure.
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[Emphasis added]
The “board” referred to in s. 47.1 (a) is that
of the CWB charged under the Act to direct and manage the business and
affairs of the Corporation (the Board). The “producers” referred to in s. 47.1
(b) are those persons that farm grain in the area named in Part III (the
Producers).
II. The
Introduction of Bill C-18
[6]
On
October 18, 2011, the Minister introduced in Parliament Bill C-18: An Act to
reorganize the Canadian Wheat Board and to make consequential and related
amendments to certain Acts (Marketing freedom for grain farmers Act). The
name of the legislation proposed in Bill C-18 accurately states the nature of
the changes to the governance structure of the CWB, and, indeed, the whole
system of the marketing of grain in Canada; what is considered to be marketing freedom for
grain farmers will replace the present centralized marketing system.
[7]
At
the present time, Bill C-18 has passed second reading at the Senate and is
before the Standing Senate Committee.
III. Issues
[8]
The present Applications are simple in nature; they are
directed at an examination of the Minister’s conduct with respect the
requirements of s. 47.1. The Applicants confirm that the validity of Bill C-18, and
the validity and effects of any legislation which might
become law as a result of Bill C-18 are not in issue in the present
Applications.
[9]
The
Applicants make it clear that their Applications are no threat to the
Sovereignty of Parliament to pass legislation. The controversy in the present
case arises from the Act, legislation that Parliament has already
passed. Section 47.1 contains conditions which are known in law as “manner and
form” procedural requirements. This form of limitation on the exercise of
legislative power is well recognized in law. At paragraph 34 of the Producer Car
Shippers argument, attention is directed to the following passages from
Professor Hogg’s text, Constitutional Law of Canada, (Carswell, Toronto, 5th ed,
2007):
Would
the Parliament or a Legislature be bound by self-imposed rules as to the
“manner and form” in which statutes were to be enacted? The answer, in my view,
is yes.
[…]
Thus,
while the federal Parliament or a provincial Legislature cannot bind itself as
to the substance of future legislation, it can bind itself as to the manner and
form of future legislation.
[…]
It
seems implausible that a legislative body should be disabled from making
changes to its present structure and procedures. Moreover, the case-law, while
not conclusive, tends to support the validity of self-imposed manner and form
requirements.
[Footnotes
omitted]
(Motion
Record of Producer Car Shippers, Tab 10)
[10]
The
Minister has attempted to argue that s. 47.1 does not meet the requirements of
a “manner and form” provision. I dismiss this argument and find any debate on
“manner and form” is not properly before the Court for determination. Section
47.1 is presumed to be constitutionally valid, and no argument challenging this
presumption has been properly presented in the present Applications; to do so
would require notice of a Constitutional Question which has not been given. Thus, as the judicial
review Applications are framed, the sole question for determination is: did the
Minister breach the process requirements of s. 47.1, and if so, what relief, if
any, should be granted? The answer to this question requires a statutory
interpretation analysis.
IV. The Applications
[11]
Both
the CWB and the Producers place heavy reliance on the democratic process
instrumental in the marketing of grain under the Act. The present
Applications have been launched to protect the process and the separate, but
conforming interests, of the Producers under T-1075-11 and the CWB under
T-1735-11.
[12]
It
is an undisputed fact that the Minister tendered Bill C-18 without conducting
the consultation and gaining the consent expressed in s. 47.1 of the Act.
As expressed by Chief Justice Fraser in the quote above: “courts have the right
to review actions of the executive branch to determine if they are in
compliance with the law and, where warranted, to declare government action
unlawful.” Thus, I find that the Minister’s decision to not comply with the
conditions expressed in s. 47.1, prior to tabling Bill C-18, is judicially
reviewable pursuant to section 18.1 (3) (b) of the Federal Courts Act,
RSC 1985, c F-7.
[13]
As
a result, the issue is whether the factual and legal basis has been established
for making Declarations that state fault on the part of the Minister. Each
Application supports the making of a fault finding. The CWB supports the
Producers’ argument in T-1057-11 and makes its own argument on similar lines in
T-1735-11. The CWB confirms this point as follows:
Although the Applications are
framed somewhat differently, there is significant overlap between the parties
to, and the relief sought in, the Applications. At their core, the
Applications are each premised on the failure of the Minister to comply with
his statutory duty under section 47.1 of the Act.
(Written Representations of the Canadian
Wheat Board in T-1735-11, para. 9)
[14]
However,
each Applicant frames the request for Declaratory relief in a slightly
different way. The Applicants in T-1057-11 express the claim for relief as
follows:
(a) a declaration that the
Minister breached his statutory duty to consult with the Board and conduct a
vote of wheat and barley producers as to whether they agree with the removal of
wheat and barley from the application of Part IV of the Act and with the
elimination of the CWB’s exclusive statutory marketing mandate (Breach
Declaration);
and
(b) a declaration
that the Minister breached the duty of fairness and acted contrary to the
legitimate expectations of producers in causing the Bill to be introduced in
Parliament without first consulting with the Board and with producers through a
producer vote (Legitimate Expectation Declaration).
(Amended Notice
of Application dated November 8, 2011)
And in T-1735-11 the Applicants express the
request this way:
(a) a declaration that the
Minister failed to comply with his statutory duty pursuant to section 47.1 of
the Act, to consult with the Board and to hold a producer vote, prior to the
causing to be introduced in Parliament Bill C-18, An Act to reorganize the
Canadian Wheat Board and to make consequential and related amendments to
certain Acts ( “Bill”) (Breach Declaration);
and
(b) a declaration that the
Minister has acted in breach of the legitimate expectations of the CWB, the
Board and producers, and contrary to the duty of fairness, in causing to be
introduced in Parliament the Bill without first consulting with the Board and
holding a producer vote (Legitimate Expectation Declaration);
(Notice of Application dated
October 26, 2011)
[15]
By
consent, given the conjunction of both Applications, and the consolidated
argument filed by the Minister in response, it is appropriate to determine each
Application with a separate order, but on the basis of the present single set
of consolidated reasons which addresses the core arguments which have equal
application to both.
[16]
Two interventions have been permitted: that of the Council
of Canadians, and ETC Group, the Public Service Alliance of Canada and Food
Secure Canada (the “Council”); and that of the Producer Car Shippers of
Canada Inc. et al (“Producer Car Shippers”). The Council maintains
an interest in food sovereignty, food safety, food security, and the important
role that the CWB plays in maintaining and protecting those interests, and has
permission to address how s. 47.1 is to be interpreted in accord with NAFTA and
the Charter. The Producer Car Shippers maintain
an interest in protecting the rights and investments of grain producers who
ship their own grain, and have permission to address the application of the
“manner and form” doctrine with respect to s. 47.1 of the Act.
V. Breach of
the Law Challenge
A. The
Test for Statutory Interpretation
[17]
Whether
the Minister breached the law is a matter of statutory interpretation and
consideration of the Minister’s conduct against that interpretation. I agree
with the Applicants that an appropriate test to be applied in the present
Applications is as follows:
Today there is only one principle or
approach, namely, the words of an Act are to be read in their entire context
and in the grammatical and ordinary sense harmoniously with the scheme of the Act,
the object of the Act, and the intention of Parliament (Canada 3000 Inc, Re:
Inter-Canadian (1991) Inc (Trustee of), 2006 SCC 24 at para. 36; Bell
ExpressVu Ltd Partnership v Rex, 2002 SCC 42 at para. 26).
(Applicants’ Memorandum of Fact and Law
in T-1735-11, para. 44)
B. The
Applicants’ Argument
[18]
The
Applicants argue that:
Properly interpreted in the context in
which s. 47.1 and the 1998 amendments were adopted and the object underlying
their enactment, as well as the intention of Parliament, the ordinary sense of
the broad wording employed in s. 47.1 demonstrates that the Minister is
obligated to consult with the CWB and to hold a producer vote prior to causing
to be introduced in Parliament a bill that alters the CWB’s exclusive marketing
mandate; by causing the Bill to be introduced, the Minister breached his
statutory duty.
(Applicants’ Memorandum of Fact and Law
in T-1735-11, para. 45)
[19]
Thus,
to the Applicants, history is important. The Act was first introduced in
1935, and in 1943 the CWB became a “Single Desk” which means the CWB became the
sole marketing agency for western Canadian wheat. This authority was extended
to oats and barley in 1949, though the marketing of oats was subsequently
removed from the CWB’s exclusive jurisdiction in 1989. Throughout this period
government-appointed Commissioners managed the CWB; however, in 1998,
legislative amendments were introduced to improve the CWB’s marketing mandate
and structure to introduce democratic governance and greater accountability.
The amendments transferred control of the CWB to the farmers by creating a
board of directors. Since 1998, two-thirds of the members of the board are
elected directly by the grain producers. Section 47.1 was also implemented at
that time.
[20]
Based
on the historical context, the Applicants make the following arguments with
respect to the purpose of s. 47.1 and the scheme and the object of the Act
:
In this case, the 1998 Amendments and
section 47.1 were adopted in response to increasing calls for greater farmer control
over the CWB’s operations and marketing mandate, including the demands of some
for dual marketing.
The creation of the Board, the majority
of which was farmer-elected, and the adoption of section 47.1 were in response
to “the reasonable expectations of a majority of western grain producers” and
were aimed at empowering farmers. The purpose of section 47.1 was to ensure
that “producers should be in control of any future changes to the [CWB’s]
mandate”.
[…]
The bill creates a dual marketing system in
which Part IV, containing the prohibitions on the export or interprovincial
sale of wheat and barley, is repealed, but the CWB remains as a purchaser of
grain. Section 47.1 was enacted by Parliament to ensure that the Minister
consulted with the Board and with producers prior to introducing legislation to
implement this very system.
[…]
The purpose of the 1998 Amendments is
clear. The consistent themes underlying the amendments were democracy,
accountability, flexibility and empowerment for farmers. Similarly, the
purpose of section 47.1 was to ensure that “farmers, not government, would be
in control of any future change to the [CWB’s] marketing authority”, including
the implementation of dual marketing and the elimination of the Single Desk.
(Applicants’ Memorandum of Fact and Law
in T-1735-11, paras. 47-48, 50, and 58)
[21]
With
respect to the intention of Parliament in introducing s. 47.1, from the body of
evidence presented by the Applicants, I find the following statements of the
former Minister responsible for the CWB to be particularly cogent:
House of Commons, October 7,
1997:
Virtually every marketing
innovation which farmers have debated over the past several years will be
possible under this new law. In a nutshell, that is what Bill C-4 is all
about, empowering producers, enshrining democratic authority which has never
existed before, providing new accountability, new flexibility and
responsiveness, and positioning farmers to shape the kind of wheat board they
want for the future (Affidavit of Allen Oberg, September 15, 2011, para. 38, Exhibit 7);
House of Commons, February 17,
1998:
Such a change would have
eliminated the problematic clauses while respecting and enshrining the
fundamental principle of democratic producer control;
[…]
Tonight, at long last, Bill
C-4 will come to a vote at third reading. Its passage will signal an era of
change for the future. Its major themes are democracy, accountability,
flexibility and empowerment for farmers.
Farmers will take control.
They will have it within their authority to shape their marketing agency as
they see fit.
I have complete confidence in the judgment of producers to exercise their new
authority with strength, wisdom and prudence to the greater and greater success
of the prairie farm economy and prairie farmers most especially (Affidavit of
Allen Oberg, September 15, 2011, para. 40,
Exhibit 9);
Senate Committee, May 5, 1998:
The amendment would require
that if any future minister responsible for the [CWB] decides that it is
appropriate public policy to change the mandate of the [CWB], to make it either
bigger or smaller, it would be up to him to make that policy determination.
But he would be required to conduct a vote in advance to obtain the consent of
farmers (Affidavit of Allen Oberg, September 15, 2011, para.
42, Exhibit 11).
[Emphasis in the original]
[22]
In
addition, the Former Minister repeatedly confirmed that s. 47.1 requires a
Producer vote if a proposed change is “significant or fundamental”:
Policy Statement, “Changes in Western
Grain Marketing”, October 7, 1996:
The proposed legislation will provide for
future mandate changes contingent upon the formal considered advice of the CWB
board of directors and, if a quality control issue is involved, the formal
certification by the Canadian Grain Commission that a change can in fact be
made without jeopardizing the world-renowned Canada reputation for high
quality, consistency and dependability. If the CWB directors consider any
proposed change to be significant or fundamental, a producer vote would be
a prerequisite before implementation [Emphasis added] (Record of the CWB, Tab
3, p. 112);
Standing Committee on Agriculture and
Agri-Food, Meeting No. 57, December 12, 1996:
In future the Wheat Board’s mandate may
be adjusted, conditional upon three things: first of all, a clear
recommendation to that effect by the directors of the Canadian Wheat Board;
secondly, if a quality control issue is involved, the unequivocal concurrence
of the Canadian Grain Commission that a change can be made safely without
damaging Canada’s reputation for quality and consistency; and third, if the
proposed change is significant or fundamental, then an affirmative vote
among farmers would need to be a prerequisite [Emphasis added] (Record of the
CWB, Tab 4, p. 125).
[23]
The
Council submits that the intention of Parliament can be evidenced by the
invocation of international trade obligations as a rationale for the 1998
Amendments by the Former Minister. The democratic nature of s. 47.1, which mandates
producer control, was considered necessary in order to defend the CWB’s
marketing practices in the face of the NAFTA. The Former Minister stated that
s. 47.1 was intended to prevent the Act from being “used as some thinly
veiled excuse by our competitors, perhaps the United States, to launch some
form of trade harassment” (House of Commons, February 17, 1998; Affidavit of
Allen Oberg,
September 15, 2011,
Exhibit 9; Council Memorandum of Fact and Law, paras. 8-14).
[24]
The
Council effectively argues that, when in doubt, statutory interpretation must
have regard to democratic and constitutional values. In the present case this
is especially important because s. 47.1 speaks to the unique situation in which
these democratic values are already implemented in the structure of the CWB. This
fact requires that, in proposing that a fundamental change be made to the
structure, the Minister must act democratically. This is what s. 47.1 says. Not
adhering to these values is not only disrespectful, it is contrary to law.
C. The
Minister’s Response
[25]
The
Minster advances the following statutory interpretation argument:
The Applicants contend that
section 47.1 should be read expansively in such a way as to require the
Minister to seek and to obtain a favourable producer vote before being allowed
to introduce any bill “that alters the CWB’s exclusive marketing mandate.”
In an affidavit filed by the CWB in these proceedings, the Chair of its board
of directors states the CWB position as being “ […] simply that farmers, not
the government, should decide the future of the Single Desk in a vote held
in accordance with section 47.1 of the Act.”
The clear wording of the
section 47.1, however, refers only to the addition or subtraction of particular
grains or types of grain from the marketing regime as it is established in
Parts III and IV of the Act. It does not refer to limiting the future
repeal of the Act itself or to any other changes. It leaves the future
of the “single desk” as a matter for Parliament to decide.
Section 47.1 is found in Part
V under the heading, “OTHER GRAINS – APPLICATION OF PARTS III AND IV,”
which means that, not only in its wording but in its statutory context as well,
it is clearly directed only to the addition or subtraction of particular grains
in Parts III and IV. The future of the “single desk” is a policy and
legislative decision for Parliament, not for the Court.
[…]
Properly interpreted, the
scope of section 47.1 addresses the inclusion or exclusion of particular grains
or types of grain. Given the principle of Parliamentary sovereignty, section
42(1) of the Interpretation Act, and the clear wording of section 47.1
found under the statutory heading “OTHER GRAINS – APPLICATION OF PARTS III
AND IV”, this provision cannot be so broadly interpreted, as urged by the
Applicants, as to place a perpetual veto in the hands of each category of grain
producers over the continued existence of the marketing regime, or on the
repeal of the Act itself.
Understanding the crucial
distinction between removing types of wheat or barley from the application of
Part IV of the Act and repealing the entire Act itself is
fundamental to the correct interpretation of section 47.1. Bill C-18 does not
remove a particular type of prairie wheat or barley from the application of
Part IV of the Act. Rather, Bill C-18 repeals the Act, thereby
terminating the CWB’s marketing monopoly in order to replace it with a new
regime that allows all grain producers the freedom to market and sell their
grain as they choose, including through the CWB if they so decide.
[Emphasis in original]
[Footnote removed]
(Respondents’ Consolidated
Memorandum of Fact and Law, paras. 31-33; 38-39)
[26]
The
Minister relies upon the following evidentiary statements in support of the
interpretation argument:
a. A government news release
issued in September 1997 concerning the then Bill C-4 (into which section 47.1
was eventually added in the course of Parliamentary deliberations) stated that
the concept of farmer control was directed to the potential exclusion or
inclusion of various types of grains into the system (Affidavit of Allen Oberg,
September 15, 2011, Exhibit 6);
b. The Minister, at second
reading in the House of Commons of the Bill containing section 47.1, stated
that:
[t]his new law will also empower
producers to determine democratically what is and what is not under the
Canadian Wheat Board’s marketing jurisdiction.
[Emphasis in original]
(Affidavit of Allen Oberg, September 15,
2011, Exhibit 7);
c. Clauses 23 and 26 of Bill C-4
show that the arrangements for exclusion and inclusion of grains would take
place by regulation. It is clear that changes such as the abolition of the
“single desk” or the repeal of the Act in the future were not the type
of changes to which the new provisions were intended to apply (Affidavit of
Allen Oberg, September 15, 2011, Exhibit 8);
d. Commenting on an amendment to
the bill that would become section 47.1, the Minister testified before the
Standing Senate Committee on Agriculture and Forestry on May 5, 1998. The Minister
referred to the inconsistency that had historically marked the methods by which
inclusions and exclusions of various grains, such as oats and barley, had
previously taken place – sometimes by Order in Council and sometimes by
statutory amendment. When the Minister stated, “…it is unclear how one goes
about amending the jurisdiction of the Canadian Wheat Board”, he had in mind
the problem of moving various grains in or out of the regime that the CWB
administered. He was not referring to more fundamental changes to the nature or
existence of the marketing regime itself (Affidavit of Allen Oberg, September
15, 2011, Exhibit 11);
e. When the Secretary of State
moved second reading in the House of Commons and concurrence in the amendments
made in the Senate to Bill C-4, including the clause that is now section 47.1,
the Secretary of State stated:
The second area of Bill C-4
where the Senate has proposed amendments concerns the means by which the
number of grains under the marketing regime of the wheat board can be either
expanded or reduced.
As originally, drafted,
western Canadian producers had a process for excluding any kind, type, class or
grade of wheat or barley from the marketing authority of the board. Similarly,
the bill also laid out an inclusion process for adding crops to the mandate of
the wheat board.
The amendment filled a gap in
the existing Wheat Board Act. As it now stands under the Canadian Wheat Board,
the process for changing the Canadian Wheat Board’s mandate is unclear, as
every member from prairie Canada I am sure knows.
There have been concerns
expressed by producers and producer groups about the mechanism for inclusion
and exclusion originally laid out in Bill C-4. Plenty of concerns
have been expressed.
I am sure my colleagues from
the opposition party are going to get up very shortly and tell me why the
matter has not been set right yet.
The amendment responds to
those concerns. The amendment would replace existing clauses related to the
inclusion-exclusion of grains with the provision that would require the current
and future ministers responsible for the board to consult the board of
directors with its two-thirds majority of farmer chosen members and conduct a
vote among producers before any grains are added or removed from the mandate of
the board.
(Affidavit of Allen Oberg, September 15,
2011, Exhibit 12)
[Emphasis in Original]
(Respondents’ Consolidated Memorandum of
Fact and Law, para. 47)
D. Conclusions
[27]
I
find that by applying the interpretation test as set out above, the Applicants’
argument which relies upon a contextual historical approach with respect to the
unique democratic nature of the CWB, and its importance, is compelling. I
accept the argument that the CWB’s democratic marketing practices are “significant
and fundamental” because they are long standing, and strongly supported by a
large number of the some 17,000 grain producers in Western Canada. This
support is worthy of respect; the following argument on the rule of law made by
the Council makes this clear:
The rule of law is a multi-faceted
concept, conveying “a sense of orderliness, of subjection to known legal rules
and of executive accountability to legal authority.” The Courts have repeatedly
described the rule of law as embodying the principle that the law “is supreme
over officials of the government as well as private individuals, and thereby
preclusive of the influence of arbitrary power.” In other words, for political
action to be legitimate, decision- making must operate within the constraints
of the law. Governments cannot flout the law and must respect legitimate legal
processes already in place. As the Supreme Court stated in the Secession
Reference, “[i]t is the law that creates the framework within which the
“sovereign will” is to be ascertained and implemented. To be accorded
legitimacy, democratic institutions must rest, ultimately, on a legal
foundation.”
Adhering to the rule of law ensures that
the public can understand the rules they are bound by, and the rights they have
in participating in the law-making process. As the Applicants note, western
farmers relied on the fact that the government would have to conduct a
plebiscite under s. 47.1 before introducing legislation to change the marketing
mandate of the CWB. Disregarding the requirements of s. 47.1 deprives farmers
of the most important vehicle they have for expressing their views on the
fundamental question of the single desk. Furthermore the opportunity to vote in
a federal election is no answer to the loss of this particular democratic
franchise. Until the sudden introduction of Bill C-I8, Canadian farmers would
have expected the requirements of s. 47.1 to be respected.
The rule of law must therefore inform the
interpretation of s. 47.1, which sets out a process that includes consultation
and a democratic vote prior to abolishing the single desk. An interpretation of
s. 47.1 that is consistent with the rule of law would give effect to the plain
meaning of its words as ordinary citizens would understand and interpret them,
and not in a manner that defeats the consultative purpose of s. 47.1 —
particularly, given that citizens and stakeholders understood s. 47.1 to
provide them with particular rights and acted in accordance with that
understanding.
[Footnotes excluded]
(Memorandum of Fact and Law of the
Council, paras. 26-28)
[28]
I
give weight to the Council’s argument that s. 47.1 applies to changing the
structure of the CWB because the democratic structure is important to Canada’s
international trade obligations under NAFTA. I find that this is an important
consideration which supports the argument that Parliament’s intention in s.
47.1 is not to alter this structure without consultation and consent.
[29]
However,
the Applicants’ statutory interpretation, which I accept, should not be considered
to the exclusion of the Minister’s interpretation which focuses on the words
used in s. 47.1 itself. In my opinion, the correct interpretation of the
provision includes both perspectives. In my opinion, to accept the Minister’s
interpretation to the exclusion of the Applicants’ would results in an
absurdity, a condition which is to be avoided.
[30]
By
construing the liberal interpretation of the Act which best ensures the
attainment of its objects, I find that the Act 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 is contemplated, and
also in respect of a change to the democratic structure of the CWB. As the
Applicants argue, it is unreasonable to interpret the Act to conclude
that while the Minister must consult and gain consent when extracting or
extending a grain, she or he is not required to consult or gain consent when
dismantling the CWB; the point is made as follows:
… Under the Minister’s interpretation of
section 47.1, farmers would be denied a vote “when it is most needed”, namely,
in circumstances where the CWB’s exclusive marketing mandate is to be
eliminated. That interpretation is not only inconsistent with the principle
that the words of a statute must be placed in context, but is contrary to
common sense.
(Applicants’
Memorandum of Fact and Law in T-1735-11, para. 52)
[31]
Section
39 of Bill C-18 proposes to replace the whole marketing scheme of wheat in Canada by
repealing the Act after a transition period. I find that it was
Parliament’s intention in introducing s. 47.1 to stop this event from occurring
without the required consultation and consent.
VI. Legitimate
Expectations
[32]
As
an alternative argument, the Applicants maintain that the Minister has failed
to meet legitimate expectations. The Supreme Court of Canada describes a legitimate
expectation as follows:
It
affords a party affected by the decision of a public official an opportunity to
make representations in circumstances in which there would be no such
opportunity. The court supplies the omission where, based on the conduct of
the public official, a party has been led to believe that his or her rights
would not be affected without consultation.
(Old
St Boniface Residents Association Inc v Winnipeg (City), [1990] 3 S.C.R. 1170,
at para. 110)
During the course of oral argument, the Applicants
confirmed that, should they be successful on the s. 47.1 breach argument, they
would be content with that as the single result of the Applications. Therefore,
I exercise my discretion not to grant the Legitimate Expectation Declaration
requests.
VII. Conclusion
[33]
The
Minister argues that the declarations should not be granted because their
effect would be meaningless. In response, I say that there are two meaningful
effects of granting the Breach Declarations.
[34]
The
first effect is that a lesson can be learned from what has just occurred. Section
47.1 speaks, it says: “engage in a consultative process and work together to
find a solution.” The change process is threatening and should be approached
with caution. Generally speaking, when advancing a significant change to an
established management scheme, the failure to provide a meaningful opportunity
for dissenting voices to be heard and accommodated forces resort to legal means
to have them heard. In the present piece, simply pushing ahead without engaging
such a process has resulted in the present Applications being launched. Had a meaningful
consultative process been engaged to find a solution which meets the concerns
of the majority, the present legal action might not have been necessary. Judicial
review serves an important function; in the present Applications the voices
have been heard, which, in my opinion, is fundamentally importantly because it
is the message that s. 47.1 conveys.
[35]
The
second and most important effect is that the Minister will be held accountable for
his disregard for the rule of law.
[36]
I
find it is fair and just to issue the Breach Declaration on each Application.
“Douglas R. Campbell”
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