Date: 20120618
Docket: A-470-11
Citation: 2012 FCA 183
CORAM: SHARLOW
J.A.
TRUDEL J.A.
MAINVILLE
J.A.
Docket: A-470-11
BETWEEN:
ATTORNEY GENERALOF CANADA, THE MINISTER OF
AGRICULTURE AND AGRIFOOD IN HIS
CAPACITY AS
MINISTER RESPONSIBLE
FOR THE CANADIAN WHEAT BOARD
Appellants
and
FRIENDS OF THE CANADIAN WHEAT
BOARD, HAROLD
BELL, DANIEL GAUTHIER, KEN
ESHPETER, TERRY BOEHM,
LYLE SIMONSON, LYNN JACOBSON,
ROBERT HORNE, WILF
HARDER, LAURENCE NICHOLSON, LARRY
BOHDANOVICH,
KEITH RYAN, ANDY BAKER, NORBERT
VAN DEYNZE, WILLIAM
ACHESON, LUC LABOSSIERE, WILLIAM
NICHOLSON, RENE SAQUET, and
THE CANADIAN WHEAT
BOARD
Respondents
and
COUNCIL OF CANADIANS, ETC GROUP
(ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA
Interveners
Docket: A-471-11
BETWEEN:
MINISTER OF AGRICULTURE AND
AGRI-FOOD IN HIS CAPACITY AS
MINISTER RESPONSIBLE FOR THE
CANADIAN WHEAT BOARD
Appellant
and
THE CANADIAN WHEAT BOARD
ALLEN OBERG, ROD FLAMAN, CAM GOFF, KYLE KORNEYCHUK,
JOHN SANDBORN, BILL TOEWS,
STEWART WELLS and BILL WOODS
Respondents
and
COUNCIL OF CANADIANS, ETC GROUP
(ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA
Interveners
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
These
appeals concern the orders of Campbell J. of the Federal Court (“Federal Court
judge”) dated December 7, 2011 declaring, for the reasons cited as 2011 FC 1432
(“Reasons”), that the Minister of Agriculture and Agri-Food (“Minister”) failed
to comply with his statutory duty pursuant to section 47.1 of the Canadian
Wheat Board Act, R.S.C. 1985, c. C-24 (“CWB Act”), to consult
with the Canadian Wheat Board (“CWB”) and to obtain the consent of wheat and
barley producers by means of a vote prior to introducing Bill C-18 in
Parliament, which resulted in the adoption of the Marketing Freedom for
Grain Farmers Act, S.C. 2011, c. 25.
[2]
These
appeals were consolidated and expedited by orders of the Chief Justice dated
respectively February 14 and 17, 2012. The CWB did not participate in these
appeals. The interveners were granted leave to intervene on two issues by order
of this Court dated April 16, 2012. Motions to quash or, alternatively, to stay
these appeals were dismissed from the bench prior to the hearing of the appeals
on May 23, 2012. These reasons for judgment concern both appeals, and a copy of
thereof shall be placed in each Court file as reasons therein.
[3]
These
appeals form part of a series of legal proceedings challenging the Marketing
Freedom for Grain Farmers Act.
[4]
The
first proceedings were initiated by the Friends of the Canadian Wheat Board and
a number of individual wheat and barley producers who made an application for
judicial review in the Federal Court in June 2011 under Federal Court file
T-1057-11. The CWB and some of its directors also made a separate application
for judicial review in October 2011 under Federal Court file T-1735-11.
Although the drafting was slightly different in each application, the judicial
declarations sought by all applicants were essentially the same:
a. a declaration that the
Minister failed to comply with his statutory duty pursuant to section 47.1 of
the CWB Act to consult with the CWB and to obtain the consent of wheat
and barley producers by means of a vote held prior to causing to be introduced
into Parliament Bill C-18; and
b. a declaration that the
Minister acted in breach of the legitimate expectations of the CWB and of wheat
and barley producers, and contrary to the duty of procedural fairness, in
causing to be introduced into Parliament this Bill without first consulting
with the CWB and holding a vote among wheat and barley producers.
These judicial review applications were heard and
decided together by the Federal Court judge, and the orders issued as a result
are now the object of this appeal.
[5]
Relying
on the declarations of the Federal Court judge issued following these two
judicial review applications, some former directors of the CWB filed a
statement of claim in the Court of Queen’s Bench of Manitoba seeking
declarations that the Marketing Freedom for Grain Farmers Act is invalid
and infringes the rule of law, the Constitution Act, 1867, and the Constitution
Act, 1982 on the ground that this new legislation results from illegal
actions of the Minister.
[6]
An
interlocutory order was also sought within the framework of the Manitoba
proceedings for the purpose of staying or suspending nunc pro tunc the
operation and implementation of the Marketing Freedom for Grain Farmers Act
as at the date and time of Royal Assent, pending a decision as to the validity
of that legislation. Perlmutter J. refused to grant such an order for reasons
dated February 24, 2012 and cited as Oberg et al. v. Canada (Attorney
General), 2012 MBQB 64. An appeal from that judgment to the Court of Appeal
of Manitoba is pending.
[7]
Also
relying on the declarations of the Federal Court judge, in February 2012 a
proposed class proceeding on behalf of grain producers who sold grain through
the CWB was filed with the Federal Court (T-356-12) seeking (a) an order
staying or suspending nunc pro tunc the operation and implementation of
the Marketing Freedom for Grain Farmers Act as of the date and time of
Royal Assent; (b) a declaration that the Minister’s actions in failing to
consult and hold a vote of grain producers prior to introducing that
legislation in Parliament infringed paragraphs 2(b) (freedom of thought,
belief, opinion and expression) and 2(d) (freedom of association) of the
Canadian Charter of Rights and Freedoms (“Charter”); and (c)
substantial damages against the federal Crown. These proceedings are also
pending.
[8]
It
is thus in these highly litigious circumstances that this appeal must be
decided.
The context of these proceedings
[9]
The
marketing of western Canadian wheat grain has had a long and tumultuous history
characterized by deep tensions between proponents of open markets, of voluntary
collective marketing pools, and of the CWB acting as compulsory marketing
agency. For a detailed account of that history, reference may be made to F.
Wilson, A Century of Canadian Grain, Government Policy to 1951 (Western
Producer Prairie Books, Saskatoon, 1978); Vernon C. Fowke, The National
Policy and the Wheat Economy (University of Toronto Press, Toronto, 1957);
Vernon C. Fowke, Canadian Agricultural Policy, The Historical Pattern
(University of Toronto Press, 1946, reprinted 1978).
[10]
The
CWB was established by Parliament in 1935 by the Act to provide for the
Constitution and Powers of the Canadian Wheat Board, 25-26 George V, c. 53.
The powers and mandate of the CWB have considerably evolved since that time
through numerous legislative amendments, regulations and Orders in Council.
[11]
The
CWB’s operations today concern principally wheat and barley produced in a
“designated area” defined under subsection 2(1) of the CWB Act as
comprising Manitoba, Saskatchewan and Alberta and that part of the Province of British Columbia known as the Peace River District.
[12]
For
most of its history, the operations of the CWB have been governed by four
fundamental principles:
a. grain marketing
monopoly:
subject to certain regulatory exceptions, such as animal feed grain, Part IV of
the CWB Act prohibits all persons other than the CWB from engaging in
the sale of wheat and other designated grains that are destined for export from
Canada or for consumption in Canada;
b. compulsory price
pooling:
grain farmers deliver their grain crop to the Board through “pools”
contemplated by Part III of the CWB Act; under the pooling system, each
producer receives an interim payment (based on estimated market returns) for
the same grain delivered regardless of the time of delivery, and is entitled to
receive a final payment for this grain based on the actual prices obtained
throughout the pooling year by the CWB, net of deductions for related expenses;
c. federal government
financial guarantees:
including (i) guarantees against CWB losses from operations under Part III of
the CWB Act in relation to any pool period, and from other operations
during a crop year (subsection 7(3) of the CWB Act); and (ii) loan
guarantees (subsection 19(5) of the CWB Act); and
d. federal government
control:
since it was first established, and until 1998, the CWB was under the control
of commissioners appointed by the Governor in Council; it acted as an agency of
the Crown and was bound by the directions given to it by the federal cabinet.
[13]
The
combined effect of the CWB’s grain marketing monopoly and of the compulsory
price pooling system is referred to, colloquially and in these reasons, as the
“Single Desk”.
[14]
In
1998, Parliament devolved partial control of the CWB to grain producers
pursuant to the Act to amend the Canadian Wheat Board Act and to make
consequential amendments to other Acts, S. C. 1998, c. 17 (“1998 Amendments”).
The board of directors of the CWB was then expanded to include four directors
and a president appointed by the Governor in Council, and ten other directors
elected by producers on the basis of geographical representation: sections
3.01, 3.02, 3.06 and 3.07 of the CWB Act as incorporated into that act
by section 3 of the 1998 Amendments. The CWB then ceased to be an agent
of the Crown and was declared not to be a Crown corporation: subsection 4(2) of
the CWB Act as replaced by section 4 of the 1998 Amendments. The
CWB remained subject to the directions given to it by the federal cabinet, but
the directors were not accountable for any consequences arising from the
implementation of such directions: section 18 of the CWB Act as amended
by section 10 of the 1998 Amendments.
[15]
Subsection
24(1) and section 25 of the 1998 Amendments also replaced the prior
provisions of the CWB Act concerning the exclusion of certain kinds and
grades of wheat and barley from the grain marketing monopoly. They were
replaced by a new provision, section 47.1 of the CWB Act, requiring
consultations with the CWB and a favourable vote by producers before any bill
proposing such an exclusion can be introduced in Parliament. That provision is
at the heart of the present appeal, and is fully reviewed below.
[16]
The
controversy among western Canadian grain producers over the mandate and powers
of the CWB has intensified in the past few years. Many producers have been
seeking an option to sell their wheat and barley grains on the open market.
This change has been strongly opposed by the proponents of the Single Desk,
including many of the directors of the CWB and several grain producers. The
situation was such that in 2006 the Governor in Council directed the CWB not to
expend funds on advocating the retention of its monopoly powers: SOR/2006-247
(considered by this Court in Canada (Canadian Wheat Board) v. Canada (Attorney General), 2009 FCA 214, [2010] 3 F.C.R. 374).
[17]
The
current federal government also favours an open market for grains. Shortly
after the last general elections for Parliament held on May 2, 2011, the
Minister publicly announced that the re-elected government would move ahead
swiftly to allow western grain producers to market their grain freely. In the
Speech from the Throne to Parliament on June 3, 2011, the government formally
announced that legislation would be introduced during the Parliamentary session
in order “to ensure that western farmers have the freedom to sell wheat and
barley on the open market.” (Appeal Book, at p. 516).
[18]
Many
grain producers, including some directors of the CWB, opposed the planned
legislation and publicly made known their disagreement. Although financial and
economic considerations are at the heart of this disagreement, the proponents
of the Single Desk quickly focussed on the issue of consultation and consent.
On the basis of their reading of section 47.1 of the CWB Act, they held
that the Minister could not submit the proposed legislation to Parliament
without the prior consent of grain producers obtained through a vote. The
Minister held that he was not legally bound to hold such a vote and that he
would not subject the contemplated legislation to such a plebiscite.
[19]
A
producer vote was nevertheless organized during the summer of 2011 under the auspices
of the CWB, which seems to have then been under the control of directors
opposed to the new legislation. The methods used for the organization of the
plebiscite were criticised, and the legitimacy and fairness of the vote were
questioned by those supporting the government initiative. The results of the
vote were announced on September 12, 2011. Participation in the vote was 56%,
and, of those who voted, 62% of wheat producers and 51% of barley producers
opted to maintain the Single Desk, while 38% of wheat producers and 49% of
barley producers opted for an open market system. The Minister declined to
recognize the plebiscite as binding.
[20]
On
October 18, 2011, the Minister introduced into Parliament Bill C-18, which
resulted in the eventual adoption of the Marketing Freedom for Grain Farmers
Act. The Bill was debated in the House of Commons and in the Senate, and
was eventually adopted by both chambers. It received Royal Assent on December
15, 2011.
The Marketing Freedom for
Grain Farmers Act
[21]
The
Marketing Freedom for Grain Farmers Act substantially modifies the
legislative environment for the marketing of western wheat and barley, but it
does so in three distinct phases.
[22]
During
the first phase, which runs from the date of Royal Assent (October 18, 2011)
to August 1, 2012, the Single Desk and most of the provisions of the CWB Act
are maintained, subject to the following changes:
a. producers are able to
forward contract wheat and barley sales for delivery after August 1, 2012:
section 11 of the Marketing Freedom for Grain Farmers Act adding
subsection 42(2) to the CWB Act; and
b. the control of the CWB
is vested in a new board consisting of five directors appointed by the Governor
in Council: sections 2 to 6, 10 and 12 of the Marketing Freedom for Grain Farmers
Act.
[23]
The
second phase will comprise the five-year period from August 1, 2012 to
August 1, 2017. On August 1, 2012, the CWB Act will be repealed:
sections 39 and 40 of the Marketing Freedom for Grain Farmers Act. In
its stead, the Canadian Wheat Board (Interim Operations) Act will come
into force: sections 14 and 40 of the Marketing Freedom for Grain Farmers
Act and SI/2011-120. The Canadian Wheat Board (Interim Operations) Act
is temporary legislation which will be in full force and effect for a period of
at most five years: sections 42, 45, 46, 55, 56 and 64 of the Marketing
Freedom for Grain Farmers Act.
[24]
During
the five years of the second phase, the CWB will be continued under the
governance of five directors appointed by the Governor in Council, thus
returning the CWB to full government control: sections 8, 9, 13 and 25 of the
Canadian Wheat Board (Interim Operations) Act. The CWB’s operations will
also be substantially modified. It will continue to benefit from government
guarantees during the interim period: subsections 19(3), 26(5) and 26(6) of the
Canadian Wheat Board (Interim Operations) Act; and it will still use
price pooling, although these pools will no longer be compulsory for producers:
sections 28, 29 and 33 of the Canadian Wheat Board (Interim Operations) Act.
Moreover, the CWB’s export and interprovincial trade monopoly will no longer
exist. Consequently, wheat and barley producers will be able to sell and
deliver their grains to any domestic or export buyer under a free-market principle.
As a result, although the CWB will continue, it will be operating in a market
environment and as a voluntary pooling marketing agency for producers who wish
to continue marketing their products through it.
[25]
The
third phase is the period after August 1, 2017. By that date, the CWB
will either be continued as a privatized corporation or dissolved. The CWB will
have to submit to the Minister before August 1, 2016 an application for
continuance under either of the Canada Business Corporations Act, R.S.C.
1985, c. C-44, the Canada Cooperatives Act, S.C. 1998, c. 1, or the Canada
Not-for-profit Corporations Act, S.C. 2009, c. 23. This application will
presumably be accompanied by a new commercialization and marketing plan for its
future operations. If the application is approved by the Minister, the CWB may
be continued under one of these acts as a privatized entity. Failing such
approval and continuation, the CWB shall be wound-up and dissolved: sections 42
and 45 to 55 of the Marketing Freedom for Grain Farmers Act.
The fundamental issue
[26]
The
fundamental issue raised by these proceedings is whether the Minister was
legally bound by section 47.1 of the CWB Act to consult with the CWB and
to obtain the favourable consent of wheat and barley grain producers through a
vote prior to introducing in Parliament Bill C-18, the Marketing Freedom for
Grain Farmers Act. There is no dispute that correctness is the standard of
review upon which this issue must be decided.
[27]
Section
47.1 of the CWB Act reads as follows:
|
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.
|
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.
|
[28]
The
appellants submit that section 47.1 applies only to situations where specified
grains are to be included or excluded from Parts III or IV, but does not apply
to legislative initiatives repealing the Single Desk or the CWB Act in
its entirety, as effectuated through the Marketing Freedom for Grain Farmers
Act. The appellants add that, in any event, section 47.1 is not a proper
“manner and form” provision which imposes procedural requirements on
Parliament’s ability to adopt legislation, and it is thus unenforceable through
the courts because of the doctrine of parliamentary sovereignty as reflected in
subsection 2(2) of the Federal Courts Act, R.S.C. 1985, c. F-7.
[29]
On
the other hand, the respondents, supported by the interveners, submit that this
provision – introduced into the CWB Act pursuant to the 1998 legislative
reforms – applies to all legislation which would result directly or indirectly
in the exclusion of wheat or barley from the Single Desk, including legislative
initiatives, such as the Marketing Freedom for Grain Farmers Act, which
end the Single Desk or which repeal in its entirety the CWB Act.
[30]
I
note that, as an alternative argument, the respondents also submitted before
the Federal Court that the Minister was bound by the doctrine of legitimate
expectations to consult with the CWB and grain producers prior to introducing
the Marketing Freedom for Grain Farmers Act. The Federal Court judge did
not grant any relief on this basis, and the respondents have not argued this
point in this appeal. Although the appellants have asked this Court to address
the issue of legitimate expectations, the respondents advised us through their
counsel during the oral hearing of this appeal that they no longer advance any
arguments based on legitimate expectations. I have serious reservations
concerning the applicability of the doctrine of legitimate expectations to
Parliamentary processes in view of the comments of Sopinka J. speaking for the
Supreme Court of Canada in Reference Re Canada Assistance Plan (B.C),
[1991] 2 S.C.R. 525 at pp. 558 to 560. However, since this issue is not
being pursued by the respondents, it need not be considered.
The reasons of the Federal Court
judge
[31]
The
Federal Court judge declined to consider the Minister’s argument that section
47.1 of the CWB Act did not meet the requirements of a “manner and form”
provision. He was of the view that he could not decide that issue in the
absence of a notice of a constitutional question challenging the constitutional
validity, applicability or operability of section 47.1. Hence, he decided the
judicial review applications before him on the assumption that section 47.1 was
a valid “manner and form” provision: Reasons at paras. 9 and 10.
[32]
The
Federal Court judge seems to have implicitly recognized that, read literally,
the language of section 47.1 simply contemplates situations involving the addition or subtraction of certain kinds or grades of
grains from certain aspects of the CWB marketing regime. However, relying
“upon a contextual historical approach with respect to the unique democratic
nature of the CWB, and its importance”(Reasons at para. 27), and by “giv[ing]
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” (Reasons at para. 28), the Federal
Court judge concluded as follows:
[30] By construing
the liberal interpretation of the [Canadian Wheat Board] 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)
[Emphasis added.]
[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.
[Emphasis in
original]
Analysis
[33]
On
the basis of a plain reading of the CWB Act, Perlmutter J. of the Court
of Queen’s Bench of Manitoba held that section 47.1 only refers to the addition
or subtraction of particular grains from Parts III or IV of that act, and
thus does not require the Minister to consult with the CWB or to hold a vote
among grain producers prior to introducing in Parliament legislation which
fundamentally changes the governance structure or mandate of the CWB, or which
repeals the CWB Act as a whole: Oberg et al. v. Canada (Attorney
General), above at para. 15. The issue before this Court is whether we
should go beyond this plain reading of the provision and accept the expanded
meaning given to it by the Federal Court judge so as to ensure to wheat and
barley producers control over all fundamental legislative changes to the CWB
Act.
[34]
The
Federal Court judge, adopting for this purpose the arguments of the
respondents, was of the opinion that such an expansive meaning should be given
to section 47.1 in view of (a) its legislative history; (b) the comments of the
previous Minister in Parliament when the 1998 Amendments were being
considered; (c) the need to promote the democratic control of grain producers
over the CWB; and (d) the importance of the CWB’s democratic structure to
Canada’s international trade obligations under NAFTA. The interveners add in
this appeal a fifth consideration, namely (e) the promotion of the ability of
grain producers to act collectively in the marketing of grain taking into
account their freedom of association guaranteed by paragraph 2(d) of the
Charter.
[35]
After
carefully considering the legislative history and the context in which section
47.1 was adopted, I am of the view that none of the arguments advanced by the
respondents or the interveners can sustain an interpretation that would
preclude the Minister from introducing in Parliament legislation which would
fundamentally modify the CWB’s mandate or which would lead to the repeal of the
CWB Act. I reach this conclusion by applying the modern approach to
statutory interpretation, and after considering and discarding the arguments
advanced in favour of an expansive interpretation of section 47.1.
The modern approach to
statutory interpretation
[36]
The
modern approach to statutory interpretation has been
expressed as follows by Iacobucci J. in Rizzo & Rizzo Shoes Ltd.
(Re), [1998] 1 S.C.R. 27 at paragraph 21:
Although much
has been written about the interpretation of legislation (see, e.g., Ruth Sullivan,
Statutory Interpretation (1997); Ruth Sullivan, Driedger on the
Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of
Statutes”); Pierre-André Côté, The Interpretation of Legislation in
Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes
(2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He
recognizes that statutory interpretation cannot be founded on the wording of
the legislation alone. At p. 87 he states:
Today there is only
one principle or approach, namely, the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which
have cited the above passage with approval include: R. v. Hydro-Québec,
[1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp.,
[1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R.
550; Friesen v. Canada, [1995] 3 S.C.R. 103.
[37]
McLachlin
C.J. and Major J. reiterated this approach in Canada
Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601, 2005 SCC 54, at
paragraph 10:
It has been
long established as a matter of statutory interpretation that “the words of an
Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament”: see 65302 British Columbia Ltd. v. Canada,
[1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory
provision must be made according to a textual, contextual and purposive
analysis to find a meaning that is harmonious with the Act as a whole. When the
words of a provision are precise and unequivocal, the ordinary meaning of the
words plays a dominant role in the interpretive process. On the other hand,
where the words can support more than one reasonable meaning, the ordinary
meaning of the words plays a lesser role. The relative effects of ordinary
meaning, context and purpose on the interpretive process may vary, but in all
cases the court must seek to read the provisions of an Act as a harmonious
whole.
[38]
Thus,
under the modern contextual approach to statutory
interpretation, the grammatical and ordinary sense of a provision is not
necessarily determinative of its meaning. Regard must be had not only to the
ordinary and natural meaning of the words, but also to the context in which
they are used and the purpose of the provision considered as a whole within the
legislative scheme in which it is found: Bell ExpressVu Limited Partnership
v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 at para. 27. The most significant
element of this analysis is the determination of legislative intent: R. v.
Monney, [1999] 1 S.C.R. 652 at para. 26.
[39]
The
concept of legislative intent was explained as
follows by this Court in Felipa v. Canada (Citizenship and Immigration),
2011 FCA 272, [2012] 1 F.C.R. 3 at para. 31, citing approvingly for this
purpose Lord Nicholls in Regina v. Secretary of State for the Environment,
Transport and the Regions, Ex parte Spath Holme Ltd., [2001] 2
A.C. 349 (H.L.) at page 396:
Statutory interpretation is an exercise which requires the court to identify the
meaning borne by the words in question in the particular context. The task of
the court is often said to be to ascertain the intention of Parliament
expressed in the language under consideration. This is correct and may be
helpful, so long as it is remembered that the ‘intention of Parliament’ is
an objective concept, not subjective. The phrase is a shorthand reference
to the intention which the court reasonably imputes to Parliament in respect of
the language used. It is not the subjective intention of the minister or
other persons who promoted the legislation. Nor is it the subjective intention
of the draftsman, or of individual members or even of a majority of individual
members of either House. These individuals will often have widely varying
intentions. Their understanding of the legislation and the words used may be
impressively complete or woefully inadequate. Thus, when courts say that
such-and-such a meaning “cannot be what Parliament intended”, they are saying
only that the words under consideration cannot reasonably be taken as used by
Parliament with that meaning. As Lord Reid said in Black-Clawson
International Ltd v Papierwerke Waldhof-Aschaffenburg A G [1975]
AC 591, 613: “We often say that we are looking for the intention of
Parliament, but that is not quite accurate. We are seeking the meaning of the
words which Parliament used.”
[Emphasis added.]
[40]
In
ascertaining legislative intent, a court must
consider the total context of the provision to be interpreted, no matter how
plain the provision may seem when it is initially read in isolation. However,
it must be kept in mind that a line exists between judicial interpretation and
legislative drafting, and that this line is not to be crossed: Felipa v. Canada (Citizenship and Immigration), above at para. 32, referring to ATCO Gas &
Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R.
140, 2006 SCC 4 at para. 51.
Legislative History
[41]
The
respondents propose an analysis of the legislative history of section 47.1 of
the CWB Act which starts and ends with the legislative reform of 1998.
However, a review of the provisions which section 47.1 replaced sheds
considerable light on the scope of this section.
[42]
The
Act to amend The Canadian Wheat Board Act, 1935, 11 Geo. VI, c. 15, s.
5, assented to on May 14, 1947 (the “1947 Act”), incorporated Part
IV into the CWB Act concerning the “Regulation of Interprovincial and
Export Trade in Wheat”. Under this Part IV, Parliament entrusted the CWB with
an exclusive marketing monopoly over international and interprovincial trade in
wheat. In 1994, the CWB monopoly over international trade in wheat was reduced
to a monopoly over wheat exports from Canada in order to comply with and
implement the Uruguay Round of Multinational Trade Negotiations concluded under
the auspices of the World Trade Organization: World Trade Organization
Agreement Implementation Act, S.C. 1994, c. 47, s. 48.
[43]
Since
its inception, this marketing monopoly has, however, been subject to regulatory
exclusions of designated kinds and grades of wheat, or of wheat produced in
certain parts of Canada. Such regulatory exclusions were first set out in
paragraph 28(b) of CWB Act introduced into the act by the 1947
Act (and slightly amended in 1950 by 14 Geo. VI, c. 31, s. 6). This
regulatory authority to exclude designated kinds and grades of wheat was
reiterated in every version of the CWB Act until the 1998 Amendments.
The last reiteration of the regulatory authority was set out in paragraph 46(b)
of the CWB Act as it read just prior to the 1998 Amendments:
|
46. The
Governor in Council may make regulations
…
(b) to exclude any kind of wheat, or any grade
thereof, or wheat produced in any area of Canada, from the provisions of this
Part, either in whole or in part, or generally, or for any period;
|
46. Le
gouverneur en conseil peut, par règlement :
[…]
b) soustraire tout
type ou grade de blé, ou le blé produit dans une région donnée du Canada, à
l’application de la présente partie, totalement ou partiellement, de façon
générale, ou pour une période déterminée;
|
Thus, specific kinds or grades of wheat, or wheat
produced in a particular area of Canada, could be excluded from the CWB’s
marketing monopoly for specific periods or generally.
[44]
Likewise,
in 1948, amendments to the CWB Act came into force for the purpose of
adding a new part (now Part V) empowering the Governor in Council to extend the
application of Part III (concerning the compulsory price pooling system) or of
Part IV (concerning the CWB marketing monopoly over international and
interprovincial trade) to oats and barley: An Act to amend The Canadian
Wheat Board Act, 1935, 11-12 Geo. VI, c. 4, s. 5, assented to on March 24,
1948. These provisions have remained essentially the same throughout the years,
and their most recent reiteration is currently set out in section 47 of the CWB
Act, which reads as follows:
|
47. (1) The
Governor in Council may, by regulation, extend the application of Part III or
of Part IV or of both Parts III and IV to oats or to barley or to both oats
and barley.
(2) Where
the Governor in Council has extended the application of any Part under
subsection (1), the provisions of that Part shall be deemed to be re-enacted
in this Part, subject to the following:
(a) the word “oats” or “barley”,
as the case may be, shall be substituted for the word “wheat”;
(b) the expression “oat products”
or “barley products”, as the case may be, shall be substituted for the
expression “wheat products”; and
(c) [Repealed,
1995, c. 31, s. 4]
(d) subsection
40(2) is not applicable.
(3) An extension of the application of
Part III shall come into force only at the beginning of a crop year.
(4) For the
purposes of this section, “product”, in relation to any grain referred to in
subsection (1), means any substance produced by processing or manufacturing
that grain, alone or together with any other material or substance, designated
by the Governor in Council by regulation as a product of that grain for the
purposes of this Part.
|
47. (1) Le
gouverneur en conseil peut, par règlement, étendre l'application de la partie
III ou de la partie IV, ou des deux, à l'avoine et à l'orge, ou à l'un des
deux.
(2) En
cas d'application du paragraphe (1), les dispositions de la partie en cause
sont réputées édictées de nouveau dans la présente partie, sous réserve de ce
qui suit :
a) le terme « avoine » ou « orge », selon
le cas, est substitué au terme « blé »;
b) le terme « produits de l'avoine » ou «
produits de l'orge », selon le cas, est substitué au terme « produits du blé
»;
c) [Abrogé, 1995, ch. 31, art. 4]
d) le paragraphe 40(2) ne s'applique pas.
(3) L'extension du champ d'application
de la partie III ne peut entrer en vigueur qu'au début d'une campagne
agricole.
(4) Pour
l'application du présent article, « produit de l'avoine » ou « produit de
l'orge », selon le cas, s'entend de la substance obtenue par la
transformation ou la préparation industrielle du grain en cause, seul ou
mélangé à d'autres substances et que le gouverneur en conseil désigne, par
règlement, comme produit de ce grain pour l'application de la présente
partie.
|
[45]
The
powers of the Governor in Council under this section were found by our Court to
include the authority to exclude by regulation the application of Parts
III or IV of the CWB Act to oats and barley: Saskatchewan Wheat Pool
v. Canada (Attorney General) (1993), 67 F.T.R. 98, 107 D.L.R. (4th)
190, at paras. 35-36.
[46]
The
1998 Amendments provided for a change to section 47(1) by restricting
its application to barley, and by adding a new subsection 47(5) making the
adoption of the regulation contemplated by subsection 47(1) subject to prior
consultation with the CWB and the favourable vote of barley producers: section
25 of the 1998 Amendments. However, these modifications were never
proclaimed into force.
[47]
The
1998 Amendments also provided for other changes which were eventually
proclaimed in force, notably: (a) the repeal of the regulatory authority under
paragraph 46(b) of the CWB Act (reproduced above) to exclude a
kind or grade of wheat from the CWB marketing monopoly, and (b) the
introduction of section 47.1 into the CWB Act: subsection 24(1)
and section 25 of the 1998 Amendments. It is useful to reproduce once
again section 47.1:
|
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.
|
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.
|
[48]
The
combined effects of sections 47 and 47.1 of the CWB Act are thus
the following:
(a) the Governor in
Council retains unfettered regulatory discretion to extend to oats and barley
the compulsory price pooling system (Part III) or the CWB marketing monopoly
over interprovincial and export trade (Part IV): Canadian Wheat Board v.
Canada (Attorney General), 2007 FC 807, [2008] 2 F.C.R. 87 at paras. 45 and
50 (aff”d 2008 FCA 76);
(b) the prior authority of the
Governor in Council under paragraph 46(b) to exclude any kind or grade
of wheat or wheat produced in any area of Canada from the CWB marketing
monopoly over interprovincial and export trade under Part IV has been replaced
by a requirement to proceed by legislation; in addition, the Minister may not
cause any such legislation to be introduced unless he has consulted with the
CWB and obtained a favourable vote from the producers;
(c) the prior authority of the
Governor in Council to exclude oats and barley from Parts III or IV recognized
in Saskatchewan Wheat Pool v. Canada (Attorney General), above has been
replaced by a requirement to proceed by legislation, and the Minister may not
cause any such legislation to be introduced unless he has consulted the CWB and
obtained a favourable vote from oats or barley producers: Canadian Wheat
Board v. Canada (Attorney General), above at paras. 47, 51 and 52;
(d) the extension of Part III
or Part IV to other grains requires legislation, and the Minister may not cause
any such legislation to be introduced unless he has consulted with the CWB and
obtained a favourable vote from the producers.
[49]
The purpose and scope of
section 47.1 become apparent when considering it in the context of the
provisions it replaces or modifies. Thus, section 47.1 largely reverts back to
Parliament the prior limited regulatory authority of the Governor in Council
concerning exclusions or inclusions of certain kinds or grades of grains from Part
III or Part IV of the CWB Act. There is however nothing in section 47.1
or in the legislative history which suggests that Parliament has fettered the
Minister’s authority to introduce and recommend to Parliament legislation to
repeal the substantive provisions of the CWB Act or the act itself.
[50]
I am, moreover, comforted in
this view by subsection 42(1) of the Interpretation Act, R.S.C. 1985, c.
I-21 , which reads as follows:
|
42. (1) Every
Act shall be so construed as to reserve to Parliament the power of repealing
or amending it, and of revoking, restricting or modifying any power,
privilege or advantage thereby vested in or granted to any person.
|
42. (1) Il
est entendu que le Parlement peut toujours abroger ou modifier toute loi et
annuler ou modifier tous pouvoirs, droits ou avantages attribués par cette
loi.
|
Statements
of the previous Minister in Parliament
[51]
It is now well settled that
Parliamentary debates and similar material may be considered in interpreting
legislation as long as these are relevant and reliable and are not assigned
undue weight: R. v. Morgentaler, [1993] 3 S.C.R. 463 at p. 484, Rizzo & Rizzo Shoes Ltd. (Re), above at para. 35; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783 at para. 17. Where this material is itself ambiguous, it
should however be disregarded: Placer Dome Canada Ltd. v. Ontario (Minister
of Finance), [2006] 1 S.C.R. 715, 2006 SCC 20 at para. 39; Conacher v. Canada (Prime Minister), 2010 FCA 131, [2011] 4 F.C.R. 22 at para. 8. In any event,
such material must be reviewed cautiously since “[w]hile Hansard may
offer relevant evidence in some cases, comments of MPs or even Ministers may or
may not reflect the parliamentary intention to be deduced from the words used
in the legislation”: A.Y.S.A. Amateur Youth Soccer Association v. Canada
(Revenue Agency), [2007] 3 S.C.R. 217, 2007 SCC 42, at para. 12.
[52]
At paragraphs
21 and 22 of his Reasons, the Federal Court judge used the extrinsic evidence
submitted by the respondents as an aid in interpreting as he did section 47.1
of the CWB Act. The Federal Court judge notably used general statements
made by the former Minister to the House of Commons during the debates
surrounding the adoption of the 1998 Amendments and concerning
the “fundamental principle of democratic producer control”, and the “authority
[of farmers] to shape their marketing agency as they see fit”: Reasons at para.
21. He also used a 1996 Policy Statement setting out the following (Reasons at
para. 22):
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 by the Federal
Court judge.]
[53]
Since the
fundamental purpose of the 1998 Amendments was to devolve to grain
producers a limited measure of control over the board of directors of the CWB,
it is not surprising that the former Minister would be promoting these
amendments as favouring democratic producer control. However, this does not
necessarily mean that the producers would be entitled to a veto power over all
future legislative changes to the CWB Act.
[54]
Indeed, the above
quoted Policy Statement referring to a vote by producer when effecting a
significant or fundamental change must be understood in the full context of the
proposed legislation. Thus, in a government press release dated September 25,
1997 announcing the proposed changes, the following explanation is provided:
The new law will put farmers in the
driver’s seat when it comes to any future changes in what the CWB can market.
If farmers want to remove some
type of grain from the CWB’s current single-desk system, that can be done –
subject to three conditions:
(1)
The
directors must recommend it;
(2)
The
Canadian Grain Commission must approve an “identity preservation” system to
protect quality standards; and
(3)
If the proposed
“exclusion” is significant, there must be a vote among farmers to approve it.
(Appeal Book at p. 349) [Emphasis
added.]
[55]
Moreover, when
seeking third reading passage of the Bill leading to the 1998 Amendments
in the House of Commons on February 17, 1998, the former Minister explained
that the changes which would be subject to a vote of producers only concerned
exclusions or inclusions of certain kinds or grades of grain from the CWB’s
marketing mandate:
Question
nine is about exclusions. Can farmers get a crop removed
from the CWB’s jurisdiction? The answer under Bill C-4 is yes.
The new law will contain an exclusion
clause to allow any kind, type, class or grade of wheat or barley to be
removed in whole or in part from the CWB’S jurisdiction. To trigger it, the
directors would first have to vote in favour of the idea. Second, for quality
control reasons, a system would need to be in place to prevent the mixing of
the excluded grain with CWB grain. Third, if the directors considered any
proposes exclusion to be significant, a democratic producer vote would be
needed to approve it.
Question ten is about inclusions. Can
farmers get a crop added to the CWB’s jurisdiction if that is their
will? The answer again under Bill C-4 is yes.
As a matter of fairness and balance,
just as there is an exclusion clause, there will also be an inclusion clause in
the new law. The deciding factor in relation to both clauses will be the
majority preference of the actual producers of the grain in question as
expressed through a democratic vote of those producers. They will be in
control.
The existence of an
inclusion clause does not in itself change the CWB’s mandate. It merely sets
out a clear procedure for doing so if and only if producers themselves, not
politicians or lobbyists, believe such a change is in their best interests. The
inclusion clause would be available only for crops that currently come
within the definition of grain in the existing CWB act.
(Appeal Book at p.
394) [Emphasis added.]
[56]
In explaining
on May 5, 1998 to the Senate Standing Committee on Agriculture and Forestry why
he was proposing amendments to the draft legislation in order to remove and
simplify most of its provisions relating to inclusions and exclusions, the
former Minister provided the historical and contextual background to the
suggested changes. Given the pertinence of this explanation for the purposes of
this appeal, it is useful to quote large extracts of the former Minister’s
statement:
Mr.
Goodale: Senator, the clauses that relate to inclusion and
exclusion could most certainly be removed. That was the essence of the proposal
that I made at the end of the House of Commons debate.
I will back up for a moment to explain
why, as a policy matter, a procedure for inclusion or exclusion was included in
the bill in the first place.
Representations were made before the
House of Commons Standing Committee on Agriculture and Agri-Food when it was
considering the predecessor piece of legislation, Bill C-72, in the last
Parliament. A number of witnesses across Western Canada argued before that
committee that if there was to be a procedure in the law for an exclusion
process, then there should also be, as a matter of fairness and balance, a
procedure in the law for an inclusion process. One of the rationales was simply
to maintain that balance.
The other rationale was to fill an
absolute void in the Canadian Wheat Board legislation as it stands at the
present time. It is unclear in the present law how one goes about amending the
jurisdiction of the Canadian Wheat Board.
If honourable senators think back to
fairly recent experience, Mr. Mayer, when he was Minister of Agriculture,
amended the jurisdiction of the Canadian Wheat Board to remove oats, and did so
successfully by means of an Order in Council.
On another occasion, he attempted to
adjust the mandate of the Canadian Wheat Board, in part in relation to barley,
using essentially the same technique, an Order in Council. That was
unsuccessful. It was challenged in the courts and struck down.
An Order in Council approach worked on
one occasion but not on another. The courts drew some fine distinctions about
what was and was not appropriate.
Earlier in history, there was a
discussion at one time 20 years ago about whether or not rapeseed, as it was
then called, should be brought under the jurisdiction of the Canadian Wheat
Board. The minister of the day did not feel comfortable in dealing with that
issue until the producers voted on the subject. Nothing in the law required
that. However, he took the view that first and foremost, farmers needed to
express themselves one way or another. As you recall, farmers voted down the
idea of bringing rapeseed under the jurisdiction of the Canadian Wheat Board.
Back in the 1970s, there was a very
intense discussion about domestic feed grain policy. The mandate of the
Canadian Wheat Board at that time was adjusted, if memory serves me correctly,
partly by legislation and partly by Order in Council to accomplish an
objective. Mr. Whelan may have a more accurate recollection of the exact
procedure.
I cite those four examples: the rapeseed
vote; the argument about domestic feed grain; the case of oats; and the case of
barley; to demonstrate that there is a bit of a dog’s breakfast out there in
terms of how you go about adjusting the jurisdiction of the Canadian Wheat
Board. Part of the thinking behind the inclusion and exclusion clauses was to
clarify the situation, not to say that it should happen this or that way, but
to say that, if this is what farmers wish to happen, these are the steps to
achieving the ultimate objective.
Those provisions in the proposed legislation
have caused concern. Some groups and organizations think that they are
preordaining a certain consequence, that to have the provisions in the law,
even though they are entirely permissive and not mandatory, they are options
for farmers to pursue if so desired. No one is changing the mandate of the
Canadian Wheat Board. They are spelling out the process by which that might be
accomplished if that is what farmers want.
Despite all those words of comfort,
there are still groups and organizations that are apprehensive. My proposed
amendment at the end of the debate in the house would be to remove from the
bill the detail about inclusion and exclusion. Therefore, the way one goes
about changing the mandate of the Canadian Wheat Board remains unchanged.
The bottom line on inclusion is that the
only certain way to accomplish that would be by parliamentary legislation. In
order words, if someone were to have the bright idea that something should be
added to the jurisdiction of the Canadian Wheat Board, it would take an act of
Parliament to accomplish that.
The amendment that I
propose said that, in addition to removing the detail about inclusion and
exclusion, there would be one more condition attached if this idea came up, and
that is farmers must be consulted in the first place by means of a vote.
(Appeal Book, at pp.
405 to 407)
[57]
This explanation
is entirely consistent with the conclusion that section 47.1 of the CWB Act only
concerns the exclusion of certain kinds or grades of wheat or barley from the
CWB’s compulsory price pooling system or marketing monopoly, or the inclusion
of certain grains into that monopoly or into the compulsory price pooling
system.
[58]
The limited scope of
section 47.1 is further evidenced by the fact that the changes under the 1998
Amendments referred to above concerning section 47, including the addition
of a subsection 47(5) which called for barley producer votes, were never
proclaimed into force. That is a further indication that the government of the
day did not intend to provide producers with an extensive veto power over all
aspects of the CWB Act.
[59]
After carefully
reviewing the extrinsic material submitted by the respondents and used by the
Federal Court judge, I have found nothing in the record which leads to the
conclusion that the repeal of the Single Desk as a whole or of the CWB Act
in its entirety were somehow made conditional to obtaining the prior consent of
the CWB or of grain producers. I have found no statement confirming or implying
that the intention behind the 1998 Amendments was to restrain the
Minister from proposing to Parliament legislation fundamentally modifying or
repealing the CWB Act.
Promoting the democratic control
of grain producers over the CWB
[60]
The Federal Court judge
also expressed approval of the idea that statutory interpretation must have
regard to democratic values: Reasons at paras. 23 and 24. He accepted the
respondents’ 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 some 17,000 grain producers in Western Canada”
and that “[t]his support is worthy of respect”: Reasons para. 27.
[61]
I do not doubt that
there are numerous democratic institutions in Canada, and that the democratic
nature of such institutions deserves both respect and protection: Qu v. Canada (Minister of Citizenship and Immigration), 2001 FCA 399, [2002] 1 F.C. 3 at
paras. 42 to 48. The issue in this case, however, is whether this value trumps
the will of a democratically elected Parliament. It does not.
[62]
In our system of
representative democracy, which is similar in principle to that of the United Kingdom, the ultimate expression of democracy is effected through the elected
members of the House of Commons and of the various provincial legislatures
acting within their respective spheres of jurisdictions. Democracy in Canada rests ultimately on the participation of citizens in elections to the public
institutions created under the Constitution.
[63]
Of course, many Canadians
have an interest in preserving the democratic character of other institutions,
such as municipalities and school boards. That being said, the legislated
mandates and privileges of these institutions remain subject to the ultimate
control of Parliament or of the legislatures. Thus, municipalities may be
reorganized, school boards abolished, Crown corporations redefined, and their
privileges and authorities may wax and wane over time in accordance with the
will of Parliament and of the legislatures to which they owe their existence.
Save in circumstances where a constitutional constraint can be established,
such legislative changes do not require the consent of the institutions
affected or of their electors.
[64]
The Supreme Court of
Canada has held time and again that changes to the governing structures,
mandates and powers of municipalities, school boards and other institutions
created by legislation may be adopted without the consent of these bodies or of
their electors: Thus, in Ontario English Catholic Teachers’ Assn. v. Ontario
(Attorney General), [2001] 1 S.C.R. 470, 2001 SCC 15 at paras. 57-58,
Iacobucci J., writing for a unanimous Supreme Court of Canada, held as follows:
[57] Having found that
separate school boards in Ontario have neither a right to independent taxation
nor an absolute right to independent management and control, one can conclude
that public school boards in the province also do not have such rights. Subject
to s. 93 [of the Constitution Act, 1867], public school boards as an
institution have no constitutional status.
[58] Campbell J.
correctly stated the law in this regard in Ontario Public School Boards’ Assn. [v. Ontario (Attorney General) (1997), 151 D.L.R. (4th)
346], at p. 361:
Municipal
governments and special purpose municipal institutions such as school boards
are creatures of the provincial government. Subject to the constitutional
limits in s. 93 of the Constitution Act, 1867 these institutions have no
constitutional status or independent autonomy and the province has absolute and
unfettered legal power to do with them as it wills.
See also Alberta
Public Schools [Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 2 S.C.R. 409, 2000 SCC 45], at
paras. 33 and 34.
[Emphasis added.]
[65]
Likewise, in Baier v. Alberta,
[2007] 2 S.C.R. 673, 2007 SCC 31 at para. 39, Rothstein J. made the following
comments:
Voting and candidacy rights are
explicitly protected in s. 3 of the Charter but only in relation to the
House of Commons and provincial legislatures. The intervener Public School
Boards’ Association of Alberta submits that school boards as institutions of
local government have constitutional status in the “conventional or
quasi-constitutional sense”. However, it is not for this Court to create
constitutional rights in respect of a third order of government where the words
of the Constitution read in context do not do so.
[66]
In Haig v. Canada (Chief
Electoral Officer),
[1993] 2 S.C.R. 995, the majority of the Supreme Court of Canada held at p.
1041 that “[a] government is under no constitutional obligation to extend [a
referendum] to anyone”, and that “[a] referendum as a platform of
expression is, in my view, a matter of legislative policy and not of
constitutional law” (emphasis in original).
[67]
Although these cases concerned
alleged constitutional privileges, the principles they expound apply as well,
if not more forcefully, to alleged legislated privileges.
[68]
In my view, the
democratic principle favours an interpretation of section 47.1 of the CWB
Act that preserves to the greatest extent possible the ability of the
elected members of the House of Commons, including the Minister, to change that
legislation as best they see fit. This is, moreover, what subsection 42(1) of
the Interpretation Act, reproduced above, specifically requires.
Canada’s international trade
obligations under NAFTA
[69]
The Federal Court judge
also gave weight to the argument of the interveners “that section 47.1 applies
to changing the structure of the CWB because the democratic structure is important
to Canada’s international trade obligations under NAFTA”, and he further
concluded that this was “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”: Reasons at para. 28.
[70]
The interveners submit
that the control of the CWB by grain producers has shielded Canada from anti-competitive trading complaints. They refer to a report dated April 6, 2004
of a World Trade Organization (“WTO”) Panel rejecting a trade complaint against
Canada’s measures relating to exports of wheat and treatment of imported grains
(WTO Doc WT/DS276/R), and to a report dated August 30, 2004 from the WTO
Appellate Body upholding that decision (WTO Doc WT/DS276/AB/R). They rely in
particular on the following extract of the Panel’s report:
6.124 As we see it, the
non-interference by the Government of Canada in the CWB’s sales operations
reinforces rather than weakens this conclusion. In view of the CWB’s current
governance structure, which gives Western Canadian producers control over the
CWB, the fact that the Government of Canada does not supervise the CWB’s sales
operations makes it more rather than less likely that the CWB markets wheat
solely in accordance with the commercial interests of the producers whose
marketing agent it is.
[71]
The reference to the CWB’s
“governance structure” pertains to the composition of the board of directors,
and not to any potential producer vote under section 47.1 of the CWB Act.
As noted by the Panel in paragraph 6.123 of its report “[a]s we have noted, the
majority of the directors who serve on the CWB’s Board are elected by Western
Canadian wheat and barley producers and must be re-elected by those producers
if they wish to serve for more than one term of office.” Moreover, the Report
of the WTO Appellate Body confirms (at para. 183) that the “Panel based it
first finding on the fact that the majority of the CWB’s Board of Directors are
elected by wheat farmers and the fact that the government of Canada ‘does not
control, or interfere in, the day-to-day operations of the CWB’” Consequently,
these reports do not deal with producer votes under section 47.1 of the CWB
Act and are not pertinent to the interpretation of that provision.
[72]
Moreover, the principal purpose
of the Marketing Freedom for Grain Farmers Act is to allow an open and
free market for grain producers by putting an end to the CWB marketing
monopoly. It is hard to understand how this purpose would run afoul of NAFTA or
of any other of Canada’s international trade agreements.
[73]
It is the interpretation
of section 47.1 advanced by the respondents and the interveners which could
place at risk Canada’s international trade obligations. Future trade
agreements, including future WTO multilateral trade agreements, may eventually
entail amendments to the CWB Act in order to restrict or modify the CWB
marketing monopoly. As noted above, this was in fact required in 1994: World
Trade Organization Agreement Implementation Act, s. 48. If other similar
changes were required in the future in order to implement an international
trade agreement, the Canadian government would be precluded from proposing
these to Parliament without the consent of the grain producers should the
respondents’ interpretation of section 47.1 be accepted. This, I submit,
favours a restrictive interpretation of section 47.1 of the CWB Act.
Freedom of association
[74]
Although the Federal Court
judge did not directly address this issue, the interveners also invoke the
fundamental freedom of association guaranteed by paragraph 2(d) of the
Charter as an interpretative tool. They submit that section 47.1 of the CWB
Act should be interpreted in a manner that promotes the ability of western
Canadian grain producers to act collectively in the marketing of grain and to
enable the expression of a majority view on matters of fundamental concern to
their livelihood. That submission is principally based on Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94 (“Dunmore”).
[75]
I first note in regard
to this submission that a “Charter values” interpretative principle is
of limited application: Bell ExpressVu Limited Partnership v. Rex, above
at paras. 62 to 66.
[76]
Moreover, the principal
difficulty with the respondents’ submission is that it was rejected by this
Court in Archibald v. Canada, [2000] 4 F.C. 479 (C.A.), 257 N.R. 105. In
that case, certain western grain producers challenged the provisions of the CWB
Act requiring them to pool and market their grain through the CWB on the
basis, inter alia, that this infringed their freedom of association
under paragraph 2(d) of the Charter. Relying on Canadian Egg
Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, Rothstein J. A. (as he
then was) found that the activity of marketing wheat and barley
interprovincially and in export trade was not protected by paragraph 2 (d)
of the Charter: Archibald v. Canada, above at paras. 40 to 54.
[77]
The respondents submit
that Dunmore has somehow changed the approach set out in Archibald
v. Canada as to how paragraph 2(d) of the Charter is to be
used and understood. I disagree.
[78]
In Dunmore, considering the
profound connection between legislated labour relations schemes and the freedom
of workers to organize for the purpose of making majority representations to
their employers, the majority of the Supreme Court of Canada held that the
statutory exclusion of agricultural workers from Ontario’s legislated labour
relations scheme violated paragraph 2(d) of the Charter. There
is, however, no analogy to be drawn between the issues discussed in Dunmore and the issues at stake in this appeal revolving around the dismantlement of
the CWB’s marketing monopoly under the Marketing Freedom for Grain Farmers
Act.
[79]
As noted by Bastarache J.
at para. 17 of Dunmore, not all activities are protected by paragraph 2(d)
of the Charter. Thus, in the field of labour relations, the Supreme
Court of Canada has excluded the right to strike from the scope of this
paragraph: Reference Re Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313; and PSAC v. Canada, [1987] 1 S.C.R. 424. In the
context of agricultural marketing, the Supreme Court of Canada has also held
that paragraph 2(d) does not entail an unrestricted right to
interprovincial or export trade: Canadian Egg Marketing Agency v. Richardson,
above. As noted by McIntyre J. in Reference Re Public Service Employee
Relations Act (Alta.), above at p. 405:
…For obvious reasons, the Charter
does not give constitutional protection to all activities performed by
individuals. There is, for instance, no Charter protection for the
ownership of property, for general commercial activity, or for a host of other
lawful activities…There is simply no justification for according Charter
protection to an activity merely because it is performed by more than one
person.
[80]
Simply put, paragraph 2(d)
of the Charter does not extend any constitutional protection to a
marketing monopoly or to a compulsory price pooling system as contemplated by
the CWB Act. Nor does the Marketing Freedom for Grain Farmers Act
restrict the ability of grain producers to associate for the purposes of
marketing or pooling their products.
[81]
Consequently,
paragraph
2(d) of the Charter need not be considered as an interpretative
tool for the purposes of ascertaining the scope of section 47.1 of the CWB
Act.
The “manner and form” argument
[82]
It is undisputed that one
Parliament cannot bind another Parliament not to do something in the future. As
noted in Hogg P., Constitutional Law of Canada (5th ed. Supp,
vol. 1. looseleaf), at 12.3(a):
If a legislative body could bind
itself not to do something in the future, then a government could use its
parliamentary majority to protect its policies from alteration or repeal. This
would lay a dead hand on a government subsequently elected to power in a new
election with new issues. In other words, a government while in office could
frustrate in advance the policies urged by the opposition.
[83]
There is also little doubt
that “[t]he formulation and introduction of a bill are part of the legislative
process with which the courts will not meddle”: Reference Re Canada
Assistance Plan (B.C), above at p. 559, and that“[a] restraint on the
executive in the introduction of legislation is a fetter on the sovereignty of
Parliament itself”: Ibid. at p. 560.
[84]
The respondents, however,
submit that section 47.1 of the CWB Act creates obligations on the
Minister acting in his executive capacity rather than in his parliamentary
capacity. Consequently, they assert that the Minister’s obligation set out in section
47.1 requiring him to consult with the CWB and to obtain an affirmative vote of
grain producers prior to introducing legislation is nevertheless enforceable
and binding notwithstanding these important constitutional principles.
[85]
The appellants answer that
only “manner and form” provisions of a constitutional nature may restrict the
method by which legislation may be introduced into, and adopted by, Parliament.
The appellants further argue that section 47.1 of the CWB Act is not
such a constitutional “manner and form” provision which can impose procedural
requirements on Parliament’s ability to adopt legislation, and that section
47.1 is consequently unenforceable under the doctrine of parliamentary
sovereignty.
[86]
I have serious reservations
concerning the enforceability of section 47.1 of the CWB Act considering
the doctrine of parliamentary sovereignty, the Supreme Court of Canada’s
decision in Reference Re Canada Assistance Plan (B.C), above, and the
provisions of subsection 2(2) of the Federal Courts Act. A provision
requiring that legislation be introduced into Parliament only insofar as an
outside corporation or small outside group agrees does not appear to me to be
merely a procedural requirement. The effect of such a provision is to
relinquish Parliament’s powers in the hands of a small group not forming part
of Parliament. I seriously doubt such a provision could be used to impede the
introduction of legislation in Parliament or could result in the invalidation
of any subsequent legislation adopted by Parliament: Reference Re Canada
Assistance Plan (B.C.), above at pp. 563-64, quoting approvingly in this
regard King C.J. in West Lakes Ltd. v. South Australia (1980), 25
S.A.S.R. 389 at pp. 397-398; see also Canada (Attorney General) v Canada
(Canadian Wheat Board), 2008 FCA 76, 373 N.R. 385 at para. 4.
[87]
I need not however finally
decide this question given the conclusion reached above concerning the limited
scope of section 47.1 of the CWB Act. As noted by J. Goldsworthy, in Parliamentary
Sovereignty, Contemporary Debates (Cambridge University Press, 2010) at p.
174, “[o]ne of the most important questions not settled by the doctrine of
parliamentary sovereignty is whether, and how, Parliament can make the legal
validity of future legislation depend on compliance with statutory requirements
as to procedure or form.” It would be inappropriate for this Court to decide
such an important and far reaching constitutional question when it is not
strictly necessary to do so in order to determine the outcome of this appeal.
Conclusions
[88]
For the reasons set out
above, I conclude that the scope of section 47.1 of the CWB Act does not
extend to the Marketing Freedom for Grain Farmers Act. I would
consequently allow both appeals and set aside the orders of Campbell J of the
Federal Court. I would also order costs in favour of the appellants both in
this Court and in the Federal Court.
"Robert
M. Mainville"
“I
agree
K.
Sharlow J.A.”
“I
agree
Johanne
Trudel J.A.”
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