Date: 20100129
Docket: T-1457-08
Citation: 2010 FC 104
Ottawa, Ontario, January 29,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
FRIENDS OF THE CANADIAN WHEAT
BOARD,
HAROLD BELL, PAUL BEINGESSNER, ART HADLAND,
ART MACKLIN, KEN ESHPETER, LYNN
JACOBSON,
TERRY BOEHM, LYLE SIMONSON, STEWART
WELLS,
KEITH RYAN, WILF HARDER,
AND LAURENCE NICHOLSON
Applicants
and
THE ATTORNEY GENERAL OF CANADA
THE MINISTER OF AGRICULTURE AND AGRIFOOD
IN HIS CAPACITY AS MINISTER RESPONSIBLE
FOR THE CANADIAN WHEAT BOARD
MEYERS, NORRIS, PENNY LLP AND
THE CANADIAN WHEAT BOARD
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7 for judicial review of certain directions of the Minister
of Agriculture and Agri-Food (Minister) to the Canadian Wheat Board (CWB) dated
July 23, 2008 (Decision) changing the way the voters list is compiled for the
election of directors of the CWB.
BACKGROUND
[2]
At
issue in this case is the validity of the Minister’s Decision with regard to
the compilation of the voters list for the 2008 election of CWB directors.
[3]
According
to the Respondents, the Decision of the Minister contained in his letter of
July 23, 2008 to the CWB addressed the “promotion of voter eligibility
awareness, the manner in which an initial voters list was to be prepared, and
procedures by which eligible voters could have their name[s] added to the list
if initially not listed thereon.” The Applicants, however, characterize the
Minister’s letter as “direct[ing] the CWB to take certain steps so that others
who were previously entitled to automatic inclusion on the Voters List… were to
be removed from [the] Voters List and placed on a separate list.”
[4]
The
Applicants contend that the Minister exceeded his lawful jurisdiction in directing
such changes, and that the Decision is contrary to the Regulations Respecting
the Election of Directors of The Canadian Wheat Board, SOR/98-414 (Regulations).
Furthermore, the Applicants submit that the Minister’s Decision was made in bad
faith.
DECISION UNDER REVIEW
[5]
The
Minister attributes his authority to make the Decision to section 3.07 of the Canadian
Wheat Board Act, R.S.C.1985, c. C-24 (Act). He notes that the measures
contained within his Decision are “required for the proper conducting and
supervision of the 2008 director election.”
[6]
The
Minister expressed his concern that there are producers who are eligible to
vote but who are not aware of their eligibility. To resolve this issue, he
directed that the election coordinator publicize the voter eligibility criteria.
[7]
The
Minister was also concerned that the statutory declaration process for a
producer to add his or her name to the voters list is “both costly and time-consuming.”
The solution directed by the Minister is that the election coordinator “develop
an application form that will be made available to potential voters who would
like to be added to the voters list.” In order to be able to vote, pursuant to
section 8 of the Regulations, voters would be required to establish their
eligibility by providing one of three documents: a) the producer’s production
insurance contract from 2007 or 2008; b) the producer’s production insurance
contract number along with authorization for an eligibility verification; or c)
copies of grain receipts for one of the eligible grains for the 2007 or 2008
growing season.
[8]
The
Minister expressed further concern with regard to the number of people on the
list of permit book holders who had not made any deliveries to the CWB “in
recent years.” He noted that “although these individuals may hold permit books,
they have not clearly established that they are eligible producers.” The
Minister directed as follows on this issue:
With respect to the list of permit book
holders to be provided to the election coordinator, please ensure that the list
identifies separately those who have not delivered to the CWB during the
2007-08 and 2008-09 crop years. These permit holders should not automatically
be included on the voters list. Rather, they should be allowed to have their
names added in the same manner as producers who do not hold permit books.
ISSUES
[9]
The
issues on this application can be summarized as follows:
1.
Whether
the Applicants have standing to bring the application before the Court;
2.
Whether
the Minister had lawful authority to make the Decision;
3.
Whether
the Decision is contrary to the Regulations;
4.
Whether
the Minister made the Decision in bad faith;
STATUTORY PROVISIONS
[10]
The
following provisions of the Act are applicable to these proceedings:
|
2. (1) In this Act, “actual producer”
means a producer actually engaged in the production of grain;
…
“producer”
includes, as well as an actual producer, any person entitled, as landlord, vendor
or mortgagee, to the grain grown by an actual producer or to any share
therein;
…
3.07 Subject to the regulations, the
Corporation shall take any measures that the Minister may determine for the
proper conduct and supervision of an election of directors, including
(a) employing the persons necessary to conduct or
manage the election and the payment of any fees, costs, allowances and
expenses of any person so employed, that the Minister may determine; and
(b) paying the costs of the election incurred by
or on behalf of the Corporation, including the costs incurred in the
preparation, printing and distribution of material providing information on
candidates.
…
26(4) No permit book
shall be issued to any person other than a producer.
|
2. (1) Les
définitions qui suivent s’appliquent à la présente loi.
« arrêté » Tout
arrêté pris par la Commission sous le régime de la présente loi; y sont
assimilées les « instructions aux commerçants » qu’elle publie.
…
« producteur »
Outre le producteur-exploitant, toute personne ayant droit, à titre de
propriétaire, de vendeur ou de créancier hypothécaire, à tout ou partie des
grains cultivés par celui-ci.
…
3.07 Sous
réserve des règlements, la Commission
prend les mesures
administratives que le ministre juge indiquées relativement à l’organisation
de l’élection et à la surveillance de son déroulement, notamment :
a)
l’embauchage du personnel administrative nécessaire à la tenue de l’élection
et le versement de la rémunération et des indemnités que fixe le ministre;
b) le
paiement des frais afférents à la tenue de l’élection qu’elle a engagés ou
qui l’ont été en son nom, y compris les frais qu’elle a
autorisés quant à la
préparation, l’impression et la diffusion de la documentation électorale
destinée à faire connaître les candidats.
…
26(4) Les carnets de
livraison ne sont délivrés qu’aux producteurs.
|
[11]
The
following provisions of the Regulations are also applicable to these
proceedings:
|
6. (1) Subject to subsection
(2), every producer is entitled to be included in the voters list in respect
of the electoral district in which they produce grain.
(2) A producer who produces grain
in more than one electoral district may only be included in one voters list,
which is chosen by the producer.
…
7.
(1) Not
later than 60 days before the last day of the election period, the
Corporation shall provide the election coordinator with a list of producers
who are named in a permit book on the day the list is sent or who were named
in a permit book during the previous crop year.
(2) The election coordinator shall,
not less than 30 days before the last day of the election period,
(a) make publicly available a list of the names of
the voters in each electoral district; and
(b) send to each candidate a list of the names and
addresses of the voters in the candidate’s electoral district.
8. Any
producer whose name is not included on the voters list may, at least fourteen
days before the last day of the election period, request the election
coordinator to add the name of the producer to the voters list, if the
producer provides proof of their identity and eligibility.
|
6. (1) Sous réserve du
paragraphe (2), tout producteur a le droit d’être inscrit sur la liste des
électeurs pour la circonscription électorale dans laquelle il se livre à la
production de grain.
(2) Le producteur qui se livre à la
production de grain dans plus d’une circonscription électorale est inscrit
sur une seule liste d’électeurs de son choix.
…
7. (1) Au plus tard soixante
jours avant le dernier jour de la période d’élection, la Commission fournit
au coordonnateur d’élection la liste des producteurs dont le nom figure dans
un carnet de livraison à cette date ou y figurait au cours de la dernière
campagne agricole.
(2) Au plus tard 30 jours avant le
dernier jour de la période d’élection, le coordonnateur d’élection :
a) rend publique la liste des noms des
électeurs de chaque circonscription électorale;
b) transmet à chaque candidat la liste
des noms et adresses des électeurs de sa circonscription électorale.
8. Au plus
tard 14 jours avant le dernier jour de la période d’élection, le producteur
dont le nom n’est pas inscrit sur la liste des électeurs peut demander au
coordonnateur d’élection d’y ajouter son nom, s’il établit qu’il a droit d’y
être inscrit et fournit une preuve de son identité.
|
STANDARD OF REVIEW
[12]
Whether
or not a Minister has exceeded his or her jurisdiction and acted in a way that
is ultra vires a statute is an issue that should be determined on a
standard of correctness. Indeed, this is a “true question of jurisdiction or vires.”
See Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at
paragraph 59. As such, correctness will be used to consider whether the
Minister had lawful authority to make the July 23, 2008 Decision.
[13]
The
determination of whether the Minister’s Decision was contrary to the Regulations
is a question of law. Based on Dunsmuir, matters of law may be reviewed
on either a standard of reasonableness or correctness, based on an examination
factors enumerated in paragraphs 55 and 60 of Dunsmuir. These factors
include the existence (or lack) of a privative clause, the area of expertise of
the decision maker, as well as the nature of the question of law at issue.
[14]
There
is no privative clause within the Act to instruct the Court to give deference
to the Minister’s Decision. This factor militates in favour of judicial review
on a standard of correctness. On the other hand, the directions made by the
Minister in his Decision may be said to be within his specialized area of
expertise, which militates towards a reviewing the Decision with a standard of
reasonableness. As such, the determinative factor is whether or not this legal
question is of central importance to the legal system. I believe that the
Minister’s ability to create directives to affect the conduct and supervision
of an election is indeed of central importance to the legal system.
Accordingly, correctness will be the standard when considering whether the Minister’s
directions in his Decision were contrary to the Regulations.
[15]
The
Applicants have also alleged that the Decision was made in bad faith. This is a
matter to be considered on a standard of reasonableness. See Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph
51.
[16]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir
at paragraph 47). Put another way, the Court should only intervene if the
Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
ARGUMENTS
The Applicants
Who is a Producer?
[17]
The
Applicants say that the jurisdiction granted to the Minister under section 3.07
of the Act allows him to give instructions to the CWB on a limited number of matters.
The Applicants submit that to be legally valid, instructions issued by the
Minister must be consistent with the intent of the Act and must not violate the
Regulations.
[18]
The
definition of “producer” used in the Act does not contemplate factors such as
the delivery of grain to either the CWB or to the non-board market as
considered by the Minister. Rather, based on the Regulations, a permit book
holder is a producer. Accordingly, the Minister is not entitled to give
instructions which have the effect of removing permit book holders from the
voters list.
[19]
According
to subsection 2(1) of the Act, a producer includes “as well as an actual
producer, any person entitled, as landlord, vendor or mortgagee, to the grain
grown by an actual producer or to any share within.” An “actual producer” is defined
as a producer actually engaged in the production of grain. The Applicants use
these definitions to demonstrate that the definition of “producer” clearly
encompasses more than simply “actual producers” of grain.
[20]
Moreover,
while section 3.07 of the Act gives the Minister the ability to issue
instructions with regard to the conduct and supervision of an election, it does
not entitle the Minister to restrict the meaning of “producer” in the Act.
[21]
Both
sections 6 and 7 of the Regulations require that all producers be included on
the voters list. As such, it is vital to determine who is and who is not a
“producer” as defined by the Act. It is not the Minister’s prerogative to alter
this definition or to alter the requirement of who may or may not be included
on the voters list. The Act specifies no time frame within which a producer
must produce grain in order to maintain this status.
Minister’s
Scope of Authority
[22]
The
Applicants contend that the measures which the Minister is authorized to make
pursuant to section 3.07 “[are] somewhat general within a distinct and readily
ascertainable category of matters which are clearly administrative in nature.” Section
3.07 of the Act provides as follows:
|
3.07 Subject to the regulations, the
Corporation shall take any measures that the Minister may determine for the
proper conduct and supervision of an election of directors, including
(a) employing the persons necessary to conduct or
manage the election and the payment of any fees, costs, allowances and
expenses of any person so employed, that the Minister may determine; and
(b) paying the costs of the election incurred by
or on behalf of the Corporation, including the costs incurred in the
preparation, printing and distribution of material providing information on
candidates.
|
3.07 Sous
réserve des règlements, la Commission
prend les mesures
administratives que le ministre juge indiquées relativement à l’organisation
de l’élection et à la surveillance de son déroulement, notamment :
a)
l’embauchage du personnel administrative nécessaire à la tenue de l’élection
et le versement de la rémunération et des indemnités que fixe le ministre;
b) le
paiement des frais afférents à la tenue de l’élection qu’elle a engagés ou
qui l’ont été en son nom, y compris les frais qu’elle a
autorisés quant à la
préparation, l’impression et la diffusion de la documentation électorale
destinée à faire connaître les candidats.
|
This provision must be properly interpreted
to determine the scope of the Minister’s authority. While the phrase “any
measures” seems to imply a broad scope of authority, this authority is then
limited to that which is necessary “for the proper conduct and supervision of
an election of directors.” Consequently, any matters outside of the conduct and
supervision of the election are beyond the Minister’s authority. The Applicants
suggest that a plain-meaning interpretation of the phrase “conduct and
supervision” demonstrates that Parliament intended that the Minister be limited
to administrative measures only in his directions to the CWB. Accordingly,
substantive measures are outside of his scope of his authority.
[23]
The
Applicants submit that their interpretation is supported by the examples of the
Minister’s authority contained in 3.07 (a) and (b). In its express provision of
examples of measures that may be taken by the Minister, Parliament has limited
the Minister’s authority to the measures enumerated in subsections 3.07 (a) and
(b), or measures similar in nature, pursuant to the operation of the expressio
unius est exclusio alterius principle. Measures similar in nature would
include those that are purely administrative or procedural. Furthermore,
restricting the Minister’s scope of authority in this way is consistent with
the structure of the Act itself which contemplates that substantive matters
with regard to the conduct of elections are dealt with in the Regulations or
the Act.
[24]
In
R. v. Charles, 2005 SKCA 59, [2006] 1 W.W.R. 637, the Saskatchewan Court
of Appeal found that the Minister of National Revenue had exceeded his
authority by giving orders that would result in altering the effects of the
relevant regulations. The Applicants believe that the circumstances at hand are
similar to those in Charles.
Voters List
[25]
Section
7(1) of the Regulations requires that the CWB provide the election
coordinator with a list of producers who: a) are in a permit book on the day
the list is sent; or b) were named in a permit book the previous crop year. The
election coordinator is required to make the list of voters publicly available.
The Applicants submit that, within the context of the Regulations and the Act,
it is clear that the voters list is to be comprised of both the producers who are
named in a permit book on the day the list is sent as well as those who were
named in a book during the previous crop year.
[26]
Any
definition of what constitutes the voters list under the Regulations must be
consistent with the definition in the Act. The Act regulates to whom a
permit book may be issued. Because subsection 26(4) of the Act provides that no
permit book will be issued to any person other than a producer, it follows that
the holder of a permit book must be a producer under the Act. The Applicants
submit that the Act and the Regulations provide a circumstantial guarantee that
a list of permit book holders is a list of producers, and that any deviation
from this would have to be addressed by an amendment to the Act or the Regulations.
[27]
The
logical interpretation of section 7 of the Regulations is that the initial voters
list is a list of producers entitled to hold permit books who, consequently,
are entitled to remain on the voters list and automatically receive a ballot. The
Minister’s attempt to remove certain individuals from the voters list is in
conflict with the Regulations and is outside the scope of his authority.
Improper
Purpose
[28]
Statutory
powers, even if lawful, are not entirely beyond judicial review. The Applicants
suggest that such decisions are reviewable in “egregious cases.” Although the
Applicants concede that this is a high threshold to overcome, they submit that
this threshold is met by the facts of this case.
[29]
The
judicial review at hand arises from the ultra vires exercise of
Ministerial power which − unlike almost all other statutes, regulations
or directions − was not publicized. The Decision resulted in the
disenfranchisement of many producers who, in effect, lost a right granted to them
by Parliament.
The Respondents
[30]
The
Respondents submit that none of the Applicants have standing to bring this
application and it should be summarily dismissed.
[31]
The
right or ability to bring an application for judicial review is given to anyone
directly affected by the matter for which relief is being sought. In order for
a party to be directly affected, “the decision at issue must be one which
directly affects the party’s rights, imposes legal obligations on it, or
prejudicially affects it directly.” See League for Human Rights of B’nai
Brith Canada v. Canada, 2008 FC 732, 334 F.T.R. 63 at paragraph 24 (B’nai
Brith).
[32]
All
of the Applicants but one were named in a permit book and had made deliveries
to the CWB within the time period contained in the Decision. As a result, these
individuals were on the voters list and were not adversely affected by the Minister’s
Decision. The other Applicant, Mr. Ryan, was in the same position as any other
potential elector who was not included on the initial voters list. Accordingly,
he could have submitted evidence of his status as a producer pursuant to the
process established by the election coordinator in order to become a voter.
[33]
The
evidence before the Court suggests that no producer or eligible voter has
standing to seek judicial review of the Minister’s Decision because of a lack
of adverse or prejudicial effects on any individual’s rights.
[34]
While
the Applicants sought to stay the Minister’s Decision in 2008, Justice O’Reilly
refused the request for a stay, finding that “the rules are essentially the
same in this election as in 2006. The Applicants have not provided any evidence
that anyone lost the right to vote in 2006 or had his or her rights otherwise
interfered with.” Friends of the Canadian Wheat Board v. Attorney General of
Canada (24 October
2008), T-1457-08 (FC) (FCWB v. AG). As had been previously determined by
Justice O’Reilly, there is nothing in the Minister’s Decision that denies any
eligible voter the right to vote in the election.
[35]
The
only entity that was directly affected by the Minister’s Decision was the CWB.
However, the CWB itself has not challenged the Minister’s Decision.
Vires
[36]
A
two-part test must be applied to determine whether the Minister had authority
to make the Decision. First, the scope and purpose of the statutory authority
must be examined. Second, the Decision must be examined to determine whether it
comes within the scope of the authorizing statute. See Canada (Canadian
Wheat Board) v. Canada (Attorney General), 2009 FCA
214, 392 N.R. 149 at paragraph 46.
[37]
The
scope of section 3.07 of the Act is broad and allows the Minister to take “any
measures” with regard to the proper conduct and supervision of an election of
directors. The Respondents agree with the Applicants that the Minister’s directions
must be restricted to administrative measures. However, provided that the any directions
do not offend the Regulations, the Minister may exercise a wide range of
discretion with regard to administrative and procedural matters within the
scope of the conduct and supervisions of director elections.
[38]
The
Minister’s Decision falls within section 3.07 of the Act and simply serves to
advise the CWB of administrative and procedural measures to be implemented in
terms of the conduct and supervision of the election of directors.
[39]
Moreover,
the Applicants have erred by alleging that the statutory interpretation
principle of expressio unius est exclusio alterius applies in this case.
While this principle may be applicable in cases where a statute sets out
specific exceptions, it does not apply to the provision at hand that is framed
to allow “any measures,” as well as including some specific examples. See Ruth
Sullivan, Sullivan on the Construction of Statutes, 5th ed.
(LexisNexis, 2008) at 243-252.
Improper
Purpose
[40]
The
purpose of the Minister’s Decision is clearly based on the letter sent to the
CWB: to give directions with regard to the conduct of the 2008 election of CWB
directors. The Applicants’ allegation that the purpose of the Decision was to
disenfranchise a certain group of eligible voters does not correspond with a
reading of the Decision as a whole. Furthermore, such a view of the Decision
disregards the fact that it had no effect on the rights of any potential voter to
vote.
Regulations
[41]
The
Applicants’ allegation that the Minister’s Decision is inconsistent with the Regulations
is based on the faulty assumption that being named in a permit book is
conclusive proof of an individual’s status as a producer. While a permit book gives
the holder the right to undertake a particular activity, it does not guarantee
that the permit book holder will actually undertake the activity.
[42]
A
similar issue was considered in Re: Lanser (2008), 60 Alta. L.R. (2d)
257, 90 A.R. 218, in which it was determined that a bankrupt farmer who had: a)
moved from his farm to the city; b) sold his farming machinery; and c) had his
land disposed of, was not “actually engaged” in the production of grain,
despite the fact that he retained his permit book.
ANALYSIS
Style of
Cause
[43]
The
Court was advised by counsel for the Applicants that since this application was
commenced, Mr. Paul Beingessner has died, and a request was made that his name
be removed from the Style of Cause. There being no objection to this, the Court
agrees that the Style of Cause will be amended to remove Mr. Beingessner’s
name.
Standing
[44]
There
are two ways in which an applicant can establish standing in a judicial review
application. Section 18.1(1) of the Federal Courts Act allows an
application to be brought by “anyone directly affected by the matter in respect
of which the relief is sought.” However, the wording of section 18.1(1) has
been held to be broad enough to encompass applicants who are not directly
affected so long as they meet the test for public interest standing. See Canada (Royal
Canadian Mounted Police Public Complaints Commission) v. Canada (Attorney
General),
[2006] 1 F.C.R. 53.
[45]
In
the present case, the Applicants have proceeded on the basis of personal
standing although, at the hearing, they raised arguments which suggested that
there is a strong public interest element behind their making this application.
However, no formal attempt has been made to acquire public interest standing
and the Court has nothing before it to suggest that the Applicants could meet
the criteria for public interest standing. See Canadian Council of Churches
v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 236.
[46]
This
being the case, at the hearing of this matter, the Applicants based their
application upon personal standing, even though they indicated that there is a
broader public interest at stake.
[47]
This
means that my assessment of standing will be confined to personal standing
under section 18.1(1) of the Federal Courts Act.
[48]
As
Justice Dawson recently pointed out in B’Nai Brith at paragraph 24, “for
a party to be considered to be ‘directly affected,’ the decision at issue must
be one which directly affects the party’s rights, imposes legal obligations on
it, or prejudicially affects it directly.”
[49]
There
is no evidence before me that the Applicants have been directly affected, or
might be directly affected, by the Decision in the way that our jurisprudence
requires for personal standing. In fact, the evidence is to the contrary. There
is no evidence that the Applicants’ right to vote in the director’s election of
2008 was affected. Except for Mr. Ryan, the Applicants all appeared on the
initial voters list. In Mr. Ryan’s case, he may not have been included on the
initial voters list, but his right to vote was not affected and he may even
have voted in the election. All that can be said is that Mr. Ryan may have had
to follow the procedure set forth in the Decision to get his name on the voters
list. This change of procedure did not affect his substantive right to vote,
assuming he was an eligible producer.
[50]
As
Justice O’Reilly pointed out when he heard the interlocutory motion on this
application “the applicants have not provided any evidence that anyone lost the
right to vote in 2006 or had his or her rights otherwise interfered with.” See FCWB
v. AG, above. Nothing has changed before me.
[51]
In
any event, it was clear at the hearing of this matter before me that the
Applicants’ purpose in making this application is to take issue with the
Decision because they feel it has an adverse impact upon the democratic process
for the election of CWB directors and because they believe the Minister has an
ulterior motive. This matter was also addressed by Justice O’Reilly at the
interlocutory stages at page 5 of his decision, above:
The applicants also believe that the Minister’s
intent is to move toward a system of broader marketing choice for grain
growers. The applicants suggest that the Minister’s hope may be that directors
sympathetic to the Minister’s position will be elected this fall and begin
steering the Board in that direction. Again, this is speculation, not evidence
of irreparable harm.
[52]
It
seems to me that the real purpose behind this application has nothing to do
with how the Decision has directly affected the rights of the Applicants. Their
concern is to ensure that the Minister does not change the procedure for
compiling the voters list for CWB director elections in a way that may result
in changes to the way the CWB does business or to the way that grain is
marketed in this country. But there is no evidence before me to connect these
speculative fears with the Minister’s Decision and, even if there were, any
personal impact upon the Applicants would remain highly tenuous. The Applicants
say they want to ensure that CWB director elections function in a democratic
way. This is a public and a political concern and is not a matter which, on our
present jurisprudence, means that the Applicants are directly affected. This
application is brought as part of a political debate by Applicants whose
personal rights have not been affected and who have not demonstrated any
prejudicial effect to them, or the imposition of a legal obligation upon them as
a result of the Decision.
[53]
As
the Respondents point out, the only entity directly affected by the Decision is
the CWB which has not challenged the Decision and which has apparently complied
with the Minister’s Decision on the basis that the directions it contains are
lawful.
[54]
This
being the case, I cannot accept that the Applicants have personal standing to
bring this application as our jurisprudence defines personal standing. The
application should be dismissed on this ground alone. However, in the event it
is determined I am wrong on the issue of standing, I will also consider the
merits of the application.
Merits
[55]
The
measures set forth in the Minister’s letter of July 23, 2008 deal with a number
of issues surrounding: (1) producer awareness of voter eligibility criteria for
CWB director elections; (2) the difficulty non-permit book holders face in
having their names added to the voters list; and (3) the integrity of the voters
list itself.
[56]
The
matters raised in this application relate to the measures implemented by the
Minister to address the integrity of the voters list:
3. Integrity of the Voters List
Lastly, I am concerned about the number
of individuals on the list of permit book holders who have had zero deliveries
to the CWB in recent years. Although these individuals may hold permit books,
they have not clearly established that they are eligible producers. Therefore,
with respect to the list of permit book holders to be provided to the election
coordinator, please ensure that the list identifies separately those who have
not delivered to the CWB during the 2007-08 and 2008-09 crop years. These
permit book holders should not automatically be included on the voters list.
Rather, they should be allowed to have their names added in the same manner as
producers who do not hold permit books.
[57]
Clearly,
these measures do not impact the right to vote which is given to “producers”
under the Act and the Regulations. Their impact is to remove some permit book
holders from the initial voters list that is compiled under section 7 of the
Regulations. Those producers who have not delivered to the CWB during the
relevant period will fall under section 8 of the Regulations and will have to
apply to have their names added to the voters list by providing proof of their
identity and eligibility. They will be in the same position as those producers
who do not have permit books. What is affected by the Decision is not the right
to vote, but the way the voters list is compiled.
[58]
The
Minister’s concerns arise from the fact that some permit book holders may not
be eligible producers as defined by the Act. In order to off-set the concern
that permit book holders who are not producers will be allowed to vote, the
Minister has directed that only those permit book holders who have actually
delivered to CWB during the relevant period will go on the initial voters list
compiled under section 7 of the Regulations. Those who have not delivered
during the relevant period will be left to apply to have their names added to
the list in the same manner as producers who do not hold permit books.
[59]
The
Applicants object to this change in the system used to establish the overall voters
list because it means that permit book holders who do not deliver to CWB in the
relevant period will not appear on the initial list of producers established
under section 7 of the Regulations; those persons will now have to apply to be
put on the voters list. In other words, the Applicants say that permit book
holders should automatically qualify as eligible producer voters. In fact, they
say that section 26 of the Act enacts this into law:
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26. (1) Subject to this
Act, a producer may require the Corporation to issue a permit book
authorizing delivery of grain produced on the land comprising the farm of the
producer.
(2) The actual producer of grain on any land has the prior right to
possession of the permit book in which the land is described but shall make
the permit book available to any other producer entitled to deliver grain
thereunder on the request of that producer.
(3) Not more than one permit book shall be issued in respect of
land comprising any farm or group of farms operated as a unit.
(4) No permit book shall be issued to any person other than a
producer.
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26. (1) Sous réserve
des autres dispositions de la présente loi, tout producteur peut demander à
la Commission la délivrance d’un carnet de livraison l’autorisant à livrer du
grain produit sur les terres de son exploitation agricole.
(2) Le producteur-exploitant du grain cultivé sur les terres
mentionnées au carnet de livraison a un droit prioritaire à la possession de
celui-ci, mais il est tenu, sur demande, de le mettre à la disposition de
tout autre producteur ayant droit de livrer du grain au titre du carnet.
(3) Il n’est délivré qu’un seul carnet de livraison pour toutes les
terres d’une même exploitation agricole ou de plusieurs exploitations
agricoles mises en valeur comme une seule unité.
(4) Les carnets de livraison ne sont délivrés qu’aux producteurs.
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[60]
Under
section 2(1) of the Act, a “‘producer’ includes, as well as an actual producer,
any person entitled, as landlord, vendor or mortgagee, to the grain grown by an
actual producer or to any share therein.” This definition leads back to the
definition of an “actual producer” who is “a producer actually engaged in the
production of grain.” So a producer is someone who is actually engaged in the
production (though not necessarily the delivery) of grain, or a related
landlord, vendor, or mortgagee who is entitled to the grain grown by the actual
producer. This means that an actual producer is someone who grows grain.
[61]
If
someone is a producer with a permit book who does not deliver grain to CWB
then, under the pre-2006 system, he or she would automatically appear on the
list compiled under section 7(1) of the Regulations. Under the new system, the
same producer does not have to deliver to CWB during the relevant period but,
if he or she does not, they will not automatically appear on the voters list
under section 7 and will have to apply to be placed on the list. So voting
eligibility has not changed; what has changed is the way the voting list of
producers is compiled and the extra steps that someone with a permit book who
does not deliver will have to take to get on the voters list.
[62]
If
someone has a permit book but is not a producer then, under the old system,
they would automatically appear on the voters list and would be able to vote
even though not eligible to vote under the governing legislation. Under the new
system, such a person would not get to vote because they would not be able to
establish their eligibility to vote if they apply to be placed on the voters
list.
[63]
The concern
under the old system was that non-producers might get to vote. Under the new
system, they will be flushed out because if they do not deliver to CWB they
will have to establish that they are producers as defined by the Act.
[64]
There
are several reasons why the Applicants object to this change. First, they say
there are no time-limits attached to the definition of “producer” in the Act.
Someone might not grow grain in a particular year, so surely they should not be
deprived of the right to vote in director elections in the relevant year when
they do not deliver and they should not be removed from the initial voters list
compiled under section 7 of the Regulations.
[65]
It
seems to me that anyone who obtains a permit book but who does not engage in
the production of grain during the relevant period is not a producer. This
follows from the definition of an “actual producer” who is “a producer actually
engaged in the production of grain.” Someone who has engaged in the production
of grain in the past, or who might engage in the production of grain in the
future, is not “actually engaged in the production of grain.” If this were not
the case then there would be no limits on how long someone with a permit book
might not produce grain and still continue to be eligible to vote.
[66]
The
other reason why the relevant time period, in my view, has to affect who is a
producer for purposes of the Act and the Regulations is that, under section 26
of the Act, only a producer may require the CWB to issue a permit book
authorizing delivery of grain produced and, under section 26(4), no permit book
shall be issued to any person other than a producer.
[67]
The
Applicants seek to rely upon this provision to support their assertion that
anyone with a permit book is a producer. But a producer is either a producer
actually engaged in the production of grain or someone entitled to the grain
grown by an actual producer. Possession of a permit book does not, per se,
ensure that the holder is actually engaged in the production of grain during
the relevant period. In fact, this is the very situation that the Minister’s
Decision is intended to remedy.
[68]
Regulation
7 itself also shows that a permit book holder is not necessarily a producer.
Regulation 7(1) requires the corporation to provide a list “of producers who
are named in a permit book …” The provision does not state that the corporation
can simply provide a list of permit book holders. The list must include persons
who (a) are named in a permit book, and (b) are producers. And herein lies the
problem that the Minister’s Decision attempts to solve: How can the CWB know
that someone named in a permit book is also a producer within the meaning of
the Act? One way is to limit the initial list under Regulation 7(1) to persons
who deliver to the CWB, and to leave those persons who do not deliver to
establish their eligibility in other ways under section 8.
[69]
In
my view, the Minister’s Decision is an attempt to ensure that only producers
get onto the voters list and vote for directors. This is precisely what the Act
says must occur. Section 3.02(1) says that “Ten directors are elected by
producers in accordance with sections 3.06 to 3.08 and the regulations.”
Consequently, it seems to me that the Minister’s Decision is in accordance with
both the Act and the Regulations. A measure intended to ensure the integrity of
the voters list is a measure that determines the proper conduct and supervision
of an election of directors within the meaning of section 3.07 of the
Regulations.
[70]
The
Applicants argue that such a measure has, and will, result in extreme voter
suppression, since those producers who do not appear on the initial list
compiled under section 7 of the Regulations are unlikely to go to the trouble
of applying to register themselves as voters.
[71]
The
Minister’s initiatives to ensure the integrity of the voters list have been accompanied
by educational measures aimed at ensuring that everyone involved understands
the new approach to compiling the list, and so that no producer who wishes to
vote need be left off the list. There may have been some confusion and
resistance at first because producers were used to the previous method. But any
producer who wishes to vote is ensured of the right to do so. Measures aimed at
ensuring the integrity of the voters list do not curtail the rights of
producers. If producers who do not deliver choose not to have themselves placed
on the list, then that is their choice. It may have been easier in the past
when permit book holders were simply presented with a ballot, but that method
did not ensure the integrity of the system or allow the corporation to ensure
that only producers were voting. The Minister cannot be faulted for saying that
integrity must trump mere convenience and there is little before me that
establishes that voter suppression will be a continuing problem under the new
approach to compiling the voters list.
[72]
There
are also suggestions from the Applicants that, behind the Minister’s Decision,
lies some devious ploy to load the board of CWB with directors who will be
sympathetic to new ways of grain marketing. As was the case before Justice
O’Reilly when he heard the interlocutory application, there is simply no
evidence of underhandedness or bad faith on the part of the Minister before me.
The Applicants’ concerns are speculative. The Decision, when read as a whole,
includes measures to ensure that everyone concerned understands the voter
eligibility criteria, the reasons for the new approach, and the streamlining of
the process whereby those producers and permit book holders who do not appear
on the initial list compiled under section 7 of the Regulations, are given
every opportunity to register as voters under section 8. No one loses the right
to vote. Those producers who have not delivered grain during the relevant
period merely need to ensure that, if they wish to participate in the election,
they provide the information that will get them on the voters list. If
confusion or unfairness results then the Minister will presumably ensure that
it is dealt with so that the integrity of the system is maintained.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
style of cause is amended to remove Mr. Paul Beingessner as an Applicant.
2.
The
Application is dismissed.
3.
The
Respondents shall have the costs of this Application.
“James
Russell”
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