Monday, September 19, 2011

Contorting the intent and language of the CWB Act

The group called Friends of the CWB are preparing for their upcoming day in court fighting the Government of Canada over the future of the CWB.  Their goal is to have the courts force the Government to hold a binding plebiscite prior to repealing the CWB Act.  This is one more distraction creating even more uncertainty through the transition to an open market.

It all has to do with Section 47.1 of the Canadian Wheat Board Act, which says the Minister shall not introduce in Parliament a bill that would exclude wheat or barley from the single desk, or extend the single desk power to any other grains, unless he holds a binding plebiscite first.

The Friends of the CWB have their own interpretation.  They say:  "The provision in the Canadian Wheat Board Act, Section 47.1 says the Minister shall not introduce into Parliament any legislation altering the mandate of the Canadian Wheat Board without having held a plebiscite of farmers approving the change".

Truth is, this isn't what Section 47.1 states.  The Friends are trying to convince a Federal Court judge that “excluding wheat or barley” or “adding grains” to the provisions of the single desk is "altering the mandate" of the CWB.  The next step in this mind game is to convince the judge that even repealing the Act is "altering the mandate" of the CWB, and therefore requires a producer vote.

According to Anders Bruun, lawyer for the Friends of the CWB, "The Minister has said he's not changing the Wheat Board's mandate, he's repealing the Act as a whole. What that does is change the Wheat Board's mandate..."

This is how the Friends of the CWB have contorted the intent and language of the Act in order to thwart the will of Parliament. 

How can ending the life of an organization be seriously seen as changing its mandate?  A changed mandate means there is still a mandate.  But how can there be a mandate if there is no longer an organization to execute it?

Imagine there's a regulation that says you can't castrate a bull without approval of others through a vote.  You have a bull that will not satisfy your needs, so you plan to end its life.  There is no need to call for a vote because you’re not changing the mandate of the bull (by castration); you’re ending its life.  Would it be right for a small group of dissenters to get a judge to order you to hold a vote because they feel what you are planning doesn't comply with their interpretation of the rules?  Would a judge reasonably think that killing your bull is the same as castrating it? (One ends its mandate while the other only alters its mandate)?

Minister Ritz has made it clear that he is not castrating the CWB.  He is ending its life as the only bull in the herd.

A different angle

If the Friends win this case, it would mean the Act has effectively made the voice of some farmers more powerful than Parliament itself.  It would force the government of the day to ask farmers for permission before it could be effective in its job as government.  I doubt that is what Ralph Goodale and the Liberal government of the day had in mind.

Imagine what would happen at WTO negotiations.

WTO:  “All parties agree that Canada must give up the single desk of the Canadian Wheat Board in fulfillment of its commitments to these negotiated agreements.  Canada – any comments?”

Canada:  “We agree in principle.  However, before we can comply, we are required to hold a vote of Western Canadian farmers to get their approval.  If they don’t agree with repealing the Act, I’m afraid we can’t go any further with these negotiations.”

Clearly, that would be absurd.

Revisiting the logic of voting

The CWB's idea of a vote is based on a very suspect voter's list of CWB Permit Book holders.  The apparent logic is that Permit Book holders have a vested interest in the CWB. But the flip side of that argument says those without Permit Books don't have a vested interest in the CWB.

Really?  Alberta farmers who grow barley for the local feeding industry don’t count, simply because they don’t take out a CWB Permit Book?  What about the people that work in the value added industry, like those that were laid off recently at Prairie Malt? Do they not have a stake in this industry? What about all the local employees of the grain companies?  What about fuel and fertilizer dealers? Implement manufacturers and dealers?  The list goes on; shouldn't they all get to vote on issues that impact their livelihood, such as the CWB?

The CWB Act gives farmers the right to vote on whether a commodity is included or excluded from the single desk.  I get that.  But when it comes to the CWB and its impact on the whole Western Canadian rural economy, farmers aren’t the only ones with a stake in it.  We elected a federal government that has the responsibility to ensure the health of the economy for the sake of all stakeholders (citizens).  That's why Minister Ritz's plan to end the life of the current CWB without a plebiscite is the right thing to do.

Hopefully, the Federal Court judge hearing the Friends' case can see the difference between castration and ending a life, even through the wool that’s been pulled over his eyes.


  1. I think the whole issue of voting, or who has the right to vote is a mundane argument. The whole issue is that we let the CWB Directors define who is the serf and who is the landlord. Unfortunately, a socialist oriented majority of Directors have not chosen the best path for producers. It' time to adjust and change for the better.

  2. Hi John, Someone mentioned to me today that I ought to take a look at your blog.You are,of course,well within your rights as blogmaster to make as many mistakes as you like.However I do feel that it is necessary to state for the record that my clients have not retained me to "play a mind game" or "to thwart the will of Parliament" as you suggest. Rather my clients have retained me,in the words of the Federal Court of Appeal describing a presentation I recently made before that Court, to " skillfully and with great clarity.." advance their position that the CWB Act as it now stands has the force of law.

    As for the consequences of delay in the implementation of the Minister's plans for August 1, 2012, I must make it clear that only the Minister and the Government of Canada have the power to resolve that matter.

    Best regards, Anders

  3. Hi Anders, your contribution is appeciated but I note that you didn't address John's main point. Do you believe that the CWB act should supersede the elected parliament of Canada? That is the main point here.

  4. LOL!! Sounds to me like Mr.Bruun once had a career along the lines of selling used cars to little old ladies.

  5. Perhaps Western Canadian farmers should have a vote on Mr. Bruun's ability to practice law.

    Makes about as much sense as my grandma being able to vote on how Prairie Boy markets his Wheat and Barley!

  6. Anders:
    Thank you for the comment. I'm not going to argue the nuances of what a "mind game" is (although I make no apologies either). However, since you are hired to advance the position of your client, and your client's objective is to thwart the will of parliament, then you were indeed hired to thwart the will of parliament.

  7. Why have you not posted the second comment I sent?

  8. Anders: I post everything I get - no filtering. I suggest you resend it because I never received it.

  9. John,This was my reply to Rick's comment. The will of Parliament is today expressed in the form of Section 47.1 of the Canadian Wheat Board Act which is the law as it now stands.The law today calls for a plebiscite. It was the clear intention of Parliament when enacting section 47.1 that it be complied with.It will be up to the Courts to decide in due course which view is correct in law.

  10. Anders - Perhaps I misunderstood - is it your position that the government must hold a plebiscite before repealing the CWB Act?

  11. John, I cannot make our position any plainer than I have.Please read it carefully. Law is like Medicine. In both fields very few questions have a yes/no answer. And in both fields it is usually difficult to explain and answer complex questions with simple answers.The prothonotary's decision in the current case describes some of that complexity. Perhaps you should post it for your readers.

  12. And that Ladies and Gentlemen is how a high priced lawyer answers a question... by not answering it. Que the rim-shot.

  13. Can't the Government just change what the 'designated area' is? I am sure that Nunavut would love to have Allen Oberg and Stewart Wells representing them!

    Speaking of the CWB Act, in part III, section 32(1)a states that the CWB shall "buy all wheat produced in the designated area and offered by a producer for sale". A few years ago, the CWB only accepted around 60% of the durum offered for sale (contracted). Isn't this in contravention to the Act that they are clinging so tightly to?

  14. Regarding Section 47.1, I believe that any plebiscite that the government would undertake would be able to satisfy the requirements of 'b' . Obviously, Minister Ritz has consulted with the board about this. There is no provision that there be agreement.

    The government first would have to change the act to reflect what an actual producer is, because as of right now, it is defined as "a producer actually engaged in the production of grain and any person entitled, as landlord, vendor or mortgagee, to the grain grown by a producer actually engaged in the production of grain or to any share therein."

    And, a plebiscite that polls actual "producers", like is stated in this section would be easy to do. Just like with the CWB, the government could do a flawed survey as well (and a whole lot cheaper) since the process can be determined by the minister.

  15. Quite interesting that the pigs at the trough are the most vocal opponents to changes to the CWB. I suspect Mr. Bruun is planning his retirement from the litigation he is now involved in and I also suspect he wouldn't give a rats you know what if he wasn't currently about to make a whole bunch of money from this process.

  16. Anders, section 47:1 was the will of a FORMER parliament. We now have a new parliament.