The Friends of the CWB vs the Government of Canada

In June of this year a lawyer representing Friends of the Canadian Wheat Board (FCWB) applied to have a motion heard before The Federal Court of Canada.  The application was for:

“...a judicial review in respect of the decision of the Minister of Agriculture in his capacity as Minister Responsible for the Canadian Wheat Board (the "Minister") made on or about June 20, 2011 that he will not consult with the board of directors (the “Board”) of the Canadian Wheat Board (“CWB”) and conduct a vote of wheat and barley producers, in contravention of his statutory duty to do so under the Canadian Wheat Board Act, R.S.C. 1985, c. c-24 (the “Act”), including section 47.1 thereof.”

In plain English, the FCWB are saying that the Minister said he wasn’t going to hold a plebiscite and the Act states he must.  So they are asking the Federal Court of Canada to instruct the Minister to hold a plebiscite.

The application for the review was heard by a judge this morning at a special public sitting of the Federal Court of Canada. The result that would make the FCWB happy is the granting of a court date; they got their wish.

I found it interesting that the FCWB (the Applicant) didn’t present anything; I assume the judge had read the application beforehand.  The lawyer for the Government (the Respondent) argued on behalf of the Government for about 45 minutes.  It seemed fairly informal, with the judge asking the odd question, or making a brief comment along the way; even so, it was the Government’s time to explain why it felt there were no grounds for this application and it should be dismissed.

The whole FCWB argument is based on one comment made by Minister Ritz.  Shortly after the federal election in May, Minister Ritz was asked by a reporter if he was going to hold a plebiscite.  His response was “we already did.  It was the general election.”  Based on this alone, the FCWB argues that the Minister is not adhering to the regulations in Section 47.1 of the CWB Act which stipulates that the Minister must hold a plebiscite if he is going to add or remove any commodities from the single desk provisions of the CWB.

The fact that the Minister does not intend to “add or remove” anything from the single desk, rather he intends to repeal the Act completely, seems to have been overlooked.  Even by the government’s lawyer.

I listened to the government’s lawyer argue for the dismissal of this application by repeatedly explaining that the government hadn’t done anything yet (no bill has been introduced) to warrant such an application by the FCWB, and therefore there is no case.  After all, he argued, the Minister has done nothing except talk about what he might do or not do.  Surely you can’t take judicial action simply on comments he may have made.  He repeatedly argued that there are many, many ways the Minister might act on this issue and we have no way of knowing in detail what it is he is planning – nor does the Applicant (FCWB).  Therefore, there is no way to know whether the Minister will be required to follow the provisions of Section 47.1 of the Act (that is, hold a plebiscite).

I was very disappointed in this argument.

If it were me, I would have stated unambiguously and categorically, that the Minister does not need to call a plebiscite because he has made it quite clear – many times over – that he has no intention of removing or adding any commodities to the single desk.  His intent is to repeal the Act, which is substantially different.  In fact, in many media comments and articles, the argument is around whether the Minister should be able to repeal the Act without a plebiscite (which, even the CWB has acknowledged that he has the authority to do without a plebiscite).

In my view, the argument that “we don’t know what the Minister might do” and “there’s many ways he might do it” is very weak.  In a way, it left the door open to the suggestion that the FCWB might just be right. 

To the lawyer’s credit, he did say at one point, however in a “cute” sort of way, that “the Minister is not removing anything from the single desk, nor is he placing anything on the single desk”; rather, he is removing the single desk completely.  As good an argument that that is, it seems it was lost on the judge as the resounding argument heard over and over was “the Minister hasn’t done anything yet” and “we just don’t know what the Minister might do”.

In the end, the judge said he saw no reason to “strike” this application and agreed to a full hearing of the arguments.  In other words, the FCWB will get their day in court, which is what they were asking for.

Although a date was not set, this judicial process will not stop the legislative process in Ottawa.  The lawyers for the FCWB and the CWB suggested an earlier date would be preferred as the government is expected to introduce legislation in early to mid October – and once that happens they will be in a more difficult position.  The judge did not seem to be concerned; although they did talk about selecting the court location that had the earliest court opening.

This is unfortunate.  The grain trade – here in Canada as well as buyers overseas – are looking for clarity and certainty.  Unfortunately they didn’t get it today.  As long as this black cloud hangs over the industry, it will make a smooth transition to an open market harder to achieve.  We all lost today – they may not know it but even the members of the Friends of the CWB.

So stay tuned.   Unfortunately, this bit of theatre still has some life yet.