Date: 20080226
Docket: A-384-07
and A-385-07
Citation: 2008 FCA 76
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
SHARLOW J.A.
A-384-07
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
THE CANADIAN WHEAT BOARD
Respondent
and
HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE AND FOOD,
HER MAJESTY THE QUEEN IN RIGHT OF MANITOBA,
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE,
FOOD AND RURAL INITIATIVES,
HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN,
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE AND FOOD,
WESTERN BARLEY GROWERS ASSOCIATION,
JEFF NIELSON, DOUGLAS MCBAIN, STEPHEN
VANDERVALK
BOB COPELAND, LEROY NEWMAN, CONRAD
JOHNSON, TOM HEWSON,
CHRIS CARRUTHERS, IAN DONOVAN, ART WALDE
and
THE ATTORNEY GENERAL OF MANITOBA
Interveners
A-385-07
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
FRIENDS OF THE CANADIAN WHEAT BOARD,
HAROLD BELL, ART HADLAND, ART MACKLIN,
LYNN JACOBSON,
KEN ESHPETER, TERRY BOEHM, LYLE
SIMONSON, STEWART WELLS, BILL WOODS, WILF HARDER, KEN SIGURDSON AND KEITH RYAN
Respondents
and
HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA
AS REPRESENTED
BY THE MINISTER OF AGRICULTURE AND FOOD;
HER MAJESTY THE QUEEN IN RIGHT OF MANITOBA,
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE,
FOOD AND RURAL INITIATIVES;
HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE AND FOOD;
WESTERN BARLEY GROWERS ASSOCIATION,
JEFF NIELSEN, DOUGLAS MCBAIN, STEPHEN
VANDERVALK,
BOB COPELAND, LEROY NEWMAN, CONRAD
JOHNSON, TOM HEWSON,
CHRIS CARRUTHERS, IAN DONOVAN AND ART
WALDE
Interveners
Heard at Winnipeg, Manitoba, on February
26, 2008.
Judgment delivered from the Bench at Winnipeg,
Manitoba, on February
26, 2008.
REASONS
FOR JUDGMENT BY: SHARLOW
J.A.
Date: 20080226
Docket: A-384-07 and A-385-07
Citation: 2008 FCA 76
CORAM: DÉCARY
J.A.
LÉTOURNEAU
J.A.
SHARLOW J.A.
A-384-07
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Appellant
and
THE
CANADIAN WHEAT BOARD
Respondent
and
HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE AND FOOD,
HER MAJESTY THE QUEEN IN RIGHT OF MANITOBA,
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE,
FOOD AND RURAL INITIATIVES,
HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN,
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE AND FOOD,
WESTERN BARLEY GROWERS ASSOCIATION,
JEFF NIELSON, DOUGLAS MCBAIN, STEPHEN
VANDERVALK
BOB COPELAND, LEROY NEWMAN, CONRAD
JOHNSON, TOM HEWSON,
CHRIS CARRUTHERS, IAN DONOVAN, ART WALDE
and
THE ATTORNEY GENERAL OF MANITOBA
Interveners
A-385-07
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
FRIENDS OF THE CANADIAN WHEAT BOARD,
HAROLD BELL, ART HADLAND, ART MACKLIN,
LYNN JACOBSON,
KEN ESHPETER, TERRY BOEHM, LYLE
SIMONSON, STEWART WELLS, BILL WOODS, WILF HARDER, KEN SIGURDSON AND KEITH RYAN
Respondents
and
HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA
AS REPRESENTED
BY THE MINISTER OF AGRICULTURE AND FOOD;
HER MAJESTY THE QUEEN IN RIGHT OF MANITOBA,
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE,
FOOD AND RURAL INITIATIVES;
HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN
AS REPRESENTED BY THE MINISTER OF
AGRICULTURE AND FOOD;
WESTERN BARLEY GROWERS ASSOCIATION,
JEFF NIELSEN, DOUGLAS MCBAIN, STEPHEN
VANDERVALK,
BOB COPELAND, LEROY NEWMAN, CONRAD
JOHNSON, TOM HEWSON,
CHRIS CARRUTHERS, IAN DONOVAN AND ART
WALDE
Interveners
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
Despite the able submissions of counsel for the
appellant and the interveners supporting the appellant, we have concluded that
these appeals cannot succeed.
[2]
The principal issue in the appeals is whether
the presumption in subsection 31(4) of the Interpretation Act, R.S.C.
1985, c. I-21, applies to give the Governor in Council the authority to
Page: 2
repeal a
regulation including barley in the mandate of the Canadian Wheat Board under
Part IV of the Canadian Wheat Board Act, R.S.C. 1985, c. C-24. That
presumption cannot prevail against the contrary intention of Parliament.
[3]
Justice Hansen concluded that such a contrary
intention can be found in the amendments to the Canadian Wheat Board Act
that were made in 1998 (S.C. 1998, c. 17), including the enactment of section
47.1, the amendment to section 47 (not yet in force) and the repeal of
paragraph 46(b), read in their entire statutory and historical context. We
agree with Justice Hansen on that point, substantially for the reasons she gave
(2007 FC 807).
[4]
The intervener Western Barley Growers
Association raised a constitutional issue in this Court that was not raised in
the Federal Court. The argument is that section 47.1 of the Canadian Wheat Board
Act is invalid because it fetters the sovereignty of Parliament. We are not
persuaded that it is technically necessary to determine this constitutional
point because section 47.1 is before this Court only to establish of
Parliament’s intention in enacting the 1998 amendments. We would note, however,
that we do not read subsection 47.1 as fettering the sovereignty of Parliament.
It does not stop Parliament from enacting any legislation it sees fit to enact,
including legislation that amends or repeals section 47.1 itself.
[5]
These appeals will be dismissed with costs.
“K. Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-384-07
/ A-385-07
(APPEALS FROM JUDGMENTS OF THE FEDERAL
COURT DATED JULY 31, 2007, DOCKET NOS. T-1124-07 AND T-1105-07)
STYLES OF CAUSE: (A-384-07)
ATTORNEY GENERAL OF CANADA v.
THE CANADIAN WHEAT BOARD ET AL
(A-385-07)
ATTORNEY GENERAL OF CANADA v.
FRIENDS
OF THE CANADIAN WHEAT BOARD ET AL
PLACE OF HEARING: Winnipeg,
MB
DATE OF HEARING: February 26, 2008
REASONS FOR JUDGMENT OF THE COURT BY: Décary, Létourneau, Sharlow JJ.A.
DELIVERED FROM THE BENCH BY: Sharlow, J.A.
APPEARANCES:
|
Mr. Stephen F.
Vincent and Mr. Dave Hill
|
FOR THE APPELLANT
|
|
Mr. J.L.
McDougall, Q.C., Mr. James E. McLandress, and Mr. Matthew Fleming
|
FOR THE RESPONDENT (CANADIAN WHEAT BOARD)
|
|
Mr. Anders Bruun
|
FOR THE RESPONDENT (FRIENDS OF THE
CANADIAN WHEAT BOARD)
|
|
Mr. Alan Ladyka
|
FOR THE INTERVENOR
(HMTQ IN RIGHT OF MANITOBA)
|
|
Mr. Michael Conner
|
FOR THE INTERVENOR
(ATTORNEY GENERAL OF MANITOBA)
|
|
Mr. Blair R. Carbert and Bryan Gallant
|
FOR THE INTERVENOR
(WESTERN BARLEY GROWERS and
INDIVIDUALLY-NAMED INTERVENORS)
|
|
Mr David William Kinloch
|
FOR THE INTERVENOR
(HMTQ IN RIGHT OF ALBERTA)
|
|
|
|
SOLICITORS OF RECORD:
|
Hill Dewar Vincent
Winnipeg, MB
|
FOR THE APPELLANT
|
|
Fraser Milner Casgrain LLP
Toronto, ON
|
FOR THE RESPONDENT (CANADIAN WHEAT BOARD)
|
|
Anders Bruun, Barrister and Solicitor
Winnipeg, MB
|
FOR THE RESPONDENT (FRIENDS OF THE
CANADIAN WHEAT BOARD)
|
|
Ron S. Perozzo, Q.C.
Deputy Minister of Justice and Deputy
Attorney General of Manitoba
Winnipeg, MB
|
FOR THE INTERVENOR
(HMTQ IN RIGHT OF MANITOBA)
|
|
Manitoba Department of Justice
Constitutional Law Branch
Winnipeg, MB
|
FOR THE INTERVENOR
(ATTORNEY GENERAL OF MANITOBA)
|
|
Stones Carbert Waite LLP
Calgary, AB
|
FOR THE INTERVENOR
(WESTERN BARLEY GROWERS and
INDIVIDUALLY-NAMED INTERVENORS)
|
|
Alberta Justice – Civil Litigation
Edmonton, AB
|
FOR THE INTERVENOR
(HMTQ IN RIGHT OF ALBERTA)
|
Email this Content