Wheat Board: one legal adventure too many

[Fransisco]

Also from this weeks Producer, Barry Wilsons opinion piece

LIBERALS SOWED SEED FOR CWB PROMOTIONAL RULES

LAST WEEK'S unambiguous Federal Court of Appeal decision aimed at clarifying the messy relationship between the Canadian Wheat Board and the federal government made one thing perfectly clear.<b>The 1998 rewrite of the CWB Act by the then-Liberal government did not insulate the CWB from government control.</b>

While it limited the ability of the federal government to change the CWB monopoly unilaterally, it also <b>gave Ottawa the power to tell the CWB what to do even though a majority of the board of directors is farmer-elected.</b>

Defenders of the board, including the Liberals who constructed the 1998 legislative rewrite, are prone to argue that farmers now are in control. Justice J.A. Noel of the Federal Court of Appeal was not buying it.

He cited section 18 (1) of the CWB Act that gives cabinet the power to "direct the corporation with respect to the manner in which any of its operations, power and duties under the Act shall be conducted, exercised or performed."

<b>Noel said the Liberal government actually strengthened the ability of Ottawa to direct the board by adding clause 18 (1.2) which reads: "Compliance by the corporation with directions is deemed to be in the best interests of the Corporation."</b>

What were the Liberals thinking, if they really wanted to make the board independent? Clearly, they were thinking there always would be a federal government that supports the CWB monopoly. Perhaps they were thinking there would always be a Liberal government.

Eight years later, voters decided otherwise and the monopoly-hostile Conservatives have discovered that while they have been frustrated in attempts to end the monopoly, they at least have been given the power to throw their weight around.

The specific issue was a 2006 order by then-minister Chuck Strahl that the board stop spending money to promote the single desk. Board defenders howled that this was an illegal "gag" order meant to unfairly silence one side of the debate.

The Conservatives justified it with the argument that money raised from farmers, many of whom do not support the monopoly, should not be used to promote the system. CWB directors and staff still would be free to promote the monopoly, but not supported by CWB funds.

"It is important that the CWB, as a shared-governance entity, not undermine government policy objectives," said the government justification of the order.

Board supporters cried 'censorship' and went to court, where they found a compliant Federal Court judge, Ted Hughes, who quickly agreed. Justice Noel disagreed.

His decision puts the Conservative monopoly opponents in a stronger position.

The CWB that emerged from the 1998 legislative rewrite is a strange beast indeed.

The majority of its board is farmer-elected and the bill makes clear that a body once considered a crown corporation can no longer be considered an agent of the crown.

But Ottawa still appoints one-third of the board and retains considerable power to interfere in board decisions.

Whatever the outcome of the battle over the CWB monopoly, the Conservative government has inherited from the Liberals significant weapons of harassment.

A letter of thanks to former Liberal minister Ralph Goodale might be in order.

[NISAcase]

Here's what the plaintiffs see as non-legal changes applied as law (unlike CWB case) and alleged breach of the criminal and conspiracy laws not investigated.

What the RCMP considers as not needing any investigation. Also, to the reported 50 RCMP officers that the government is sending to Afghanistan this summer, keep your heads down and watch where you step over there.

How the western farmers may have lost an estimated billion dollars in NISA benefits an trillions of dollars (over 102,000 NISA participants @ $100,000.00-$1,000,000.00 each) in punitive damages.

The Boyko v. Canada (Minister of Agriculture)[2000] F.C.J. 399 case was heard January 14, 2000 and the order delivered April 4, 2000 by Judge Rouleau J.. He stated in part that his reasons for the order was based on the defendant’s evidence, which I believe now, mostly misled the court after reviewing Rasa Rutkauskas cross-examination. The court decision reads in part as follows:

“15. In the present case, the Guidelines in question are clearly a studied policy formulated by the parties to the NISA Agreement after public consultation and years of deliberation by NISA officials and committee members. They are of general application to all of the voluntary participants in the NISA program. There is no evidence here of bad faith or reliance having been placed upon irrelevant or extraneous considerations in the development of the Guidelines. Although the present application is couched in terms as a direct attack on the recommendation of the Appeal Sub-Committee to apply the policy, the real essence of the applicants’ complaint is with the policy itself; in other words, they take exception to the fact that the term “eligible net sales” does not include grain transportation costs to port and argue that the Guidelines in some way constitute an unlawful amendment of the NISA Agreement. However, all of the evidence before this court clearly established that the meaning of “eligible net sales” has never, since the inception of the program to the present, included grain transportation costs to port nor has the NISA Agreement ever been formally amended to reflect any change of that nature. In short, the Guidelines continue the same policy as has always existed within the NISA Program.”

The listed Roger Eyvindson in Appendix B swore in his affidavit in the Boyko case which reads in part:

“26………”As a result, this matter was referred to the representatives of the parties to the Federal/Provincial Agreement who approved the Point of Sale Guidelines as outlined in paragraph 25. I attached a copy of the relevant record of decision as Exhibit “D” to this my affidavit.”

and

“35. The Point of Sale Guidelines approved by the parties to the Federal/Provincial Agreement on October 24, 1994, (Exhibit D”) are the current Point of sale Guidelines and were the Point of sale Guidelines in the stabilization years 1996 and 1997.”……

The Boyko case judicial review applicants, I believe would not have been aware of the letters sent to my office and the Income Tax Act Ruling received by the Respondent (who is the Defendant in this matter) prior to their case initial hearing in January 2000. The Respondent (who is the Defendant in this case) I believe was clearly aware that it was not the authorized representatives of the parties listed at page 10 and 11 of the NISA Agreement or the 24 NNC members of Schedule C adopting the point of sale guidelines at the October 24, 1994 teleconference call if they knew anything about the NISA or 23 NNC members excluding Quebec as an agreement non-signing province.

The following excerpts are from the Defendant’s letters and read in part:
Letter dated July 14, 1998 Bob Nawolsky sent to Farm Business Consultants.

“The Sub-Committee presented the following motion to the NNC which consists of ten producer representatives, four federal representatives, and one representative from each participating province:”……
“The NNC passed the motion in October 1994 and recommended that these guidelines be in place for the 1994 and 1995 stabilization year.”…….
“These sections of the Agreement provide the authority for the Administration to implement the point of sale guidelines adopted by the NNC.” (National NISA Committee 23 or 24 members)…….
“You also question the directions in the guide for reporting expenses such as freight as a commodity purchase rather than eligible expenses. While these expenses are reportable to Revenue Canada for income tax purposes, they are not eligible for NISA as they occur after the point of sale.” (NISA Amendment 3.1.1 states “ The statement must detail all income and expense information otherwise reportable for farm business income tax purposes and necessary for the calculation of deposit and withdrawal entitlements under this agreement.” and was signed by Canada’s Minister 14 May 93 and Saskatchewan’s Minister September 22, 1994).

Letter dated June 1, 1998 Bob Nawolsky sent to B. Jolly Accounting (Saskatoon) Ltd.

“ A working group was initiated by Agriculture and Agri-Food Canada, in cooperation with industry, to review the point of sale issue and make a recommendation to the National NISA Committee (NNC) at its meeting held in September 1994.”……
“The NNC passed the motion in October 1994” (not the stated representatives of the parties to the Federal/Provincial Agreement being authorized and listed at page 10 and 11 of the NISA as sworn by Roger Eyvindson) “ and recommended that these guidelines be in place for the 1994 and 1995 stabilization years. In November 1996, the NNC recommended” (new recommendation) “the extension of the guidelines for the 1996 and 1997 stabilization years.”……
“In response to concerns expressed by these grain producers, the NNC at its meeting held in February this year” (1998) “ recommended that the current point of sale guidelines only be extended to the 1998 stabilization year.” (cancelled) “The Point of Sale Sub-Committee is currently analyzing alternative point of sale guidelines which are to be implemented with the commencement of the 1999 stabilization year. The Sub-Committee is to present its recommendation at the NNC meeting scheduled for November 1998.” (new recommendation) “In your letter you asked for the specific section of the Agreement that pertains to the point of sale guidelines. As the Agreement embodies the fundamental guiding principles of the NISA Program, not all policies,” (stated as a policy being recommended and adopted by the 23 or 24 NNC members) “including the point of sale guidelines, are specifically referenced in the Agreement.”………
”These Sections of the Agreement provided the authority for the Administration to implement the point of sale guidelines adopted by the NNC in October 1994” (not approved by the parties to the Federal/Provincial Agreement as falsely represented later in the Boyko case affidavit evidence of Roger Eyvindson)…….
”Conversely, participants using producer cars are directly responsible for the costs and risks involved in shipping their grain to the export terminal and therefore are allowed to include the associated costs in the calculation of their eligible net sales.” (special treatment and more benefits) “This interpretation has been used consistently from the advent of the Program for the 1990 tax year to present.” (stated prior freight never allowed since inception)

Letter dated December 23, 1998 Bob Nawolsky sent to B. Jolly Accounting (Saskatoon) Ltd.

“The following point of sale guidelines were recommended by the National NISA Committee on October 24, 1994.”………
“The producer representatives on the NNC were all NISA participants, but a recorded vote of the NNC was not taken on the recommendation. The guidelines were adopted following a vote by program signatories in accordance with Section 2.5 of Schedule C of the NISA Federal/Provincial Agreement. Section 2.5 requires the chairperson of the NNC to refer matters of significant financial impact to program signatories for approval.” (remember this is a tele-conference call and now a vote by program signatories that suddenly appear plus the NISA Section 2.5 is required) “As a result, only Canada and the provinces voted on the motion to implement the point of sale guidelines. Canada, Manitoba, Ontario, Quebec, Nova Scotia and Newfoundland supported the motion. British Columbia, Alberta, Saskatchewan, Prince Edward Island and New Brunswick did not support the motion”. ……..
”The participating governments have determined that program benefits shall be calculated in accordance with the point of sale guidelines.” (more contradiction and false representations)……
”Under the point of sale guidelines,” (which are stated as not specifically referenced in the Agreement) “the revenue and expenses associated with moving grain from the local elevator to port are not relevant for NISA purposes as, under the guidelines, a sale has already taken place. This does not affect producers’ responsibility to report such revenue as farming income for income tax purposes and to be able to deduct the expenses.” (NISA Amendment 3.1.1 states “ The statement must detail all income and expense information otherwise reportable for farm business income tax purposes and necessary for the calculation of deposit and withdrawal entitlements under this agreement.”).
Letter dated June 11, 1999 Bob Nawolsky sent to B. Jolly Accounting (Saskatoon) Ltd.
“I have also enclosed a copy of subsequent Agreement amendments establishing ratification by the required majority of signatories.”…….
”The point of sale guidelines were not adopted by amendment of the Agreement as they do not amend the Agreement. In accordance with Section 2.5 of Schedule C of the Agreement, a recommendation containing proposed guidelines was referred to signatories at a meeting attended by representatives of all eleven program signatories on October 24, 1994.” (now states meeting attended by representatives of all eleven program signatories and the authorized list is at page 10 and 11 of the NISA). “A majority of signatories, namely, Canada, Manitoba, Ontario, Quebec. Nova Scotia and Newfoundland voted to support the recommendation. Please refer to Appendix B for a list of federal and provincial representatives on the NNC” (the Schedule C 14 NNC members listed do not include the 10 NNC producer members and are not the authorized representatives of the parties’ ministers listed at pages 10 and 11 of the Agreement) “at that time who voted on behalf of signatories.”
“Since the adoption of the point of sale guidelines, all grain producers, including those from Ontario, have been required to report revenues net of transportation and elevation costs in accordance with the guidelines.”(have not always existed as falsely represented)……

Letter dated January 14, 2000 sent to B. Jolly Accounting (Saskatoon) Ltd.

“Section 6.2 of the Agreement states that Canada is responsible for the administration of the Program with the advice of the NNC. Section 3.2” (not the required Section 2.5 now) “of Schedule C allows the NNC to advise the Administration on issues relating to the ongoing operation of NISA and section 6 allows the NNC to establish and appoint any sub-committee needed to assist in carrying out its responsibilities. These sections of the Agreement provide the authority for the Administration to implement the point of sale guidelines adopted by the NNC in October 1994.” (the 10 equal voting NNC producer members did not vote therefore not the NNC)…..
”Freight and elevation costs are not, nor have they ever been described as allowable eligible expenses for NISA purposes, except in cases where farmers load their grain directly into producer cars for shipment to export position.” (not all grain sales and shipping expenses or eligible expenses are treated the same).

These are the false representations and contradictions of the Defendant that I have noted in the cross-examination of Rasa Rutkauskas and read in part as follows: Cross-examination on Affidavit of Rasa Rutkauskas by Mr. Zakreski dated the 29th day of September, 2005
Question (Q) Answer (A)

66 Q And they were reminded that their NISA applications should mirror up with their income tax information, correct?
A Correct.

251 Q Okay. But the agreements speak for themselves as to what they define and don’t define, correct?
A Correct.

292 Q I’d like you to refer to your Affidavit sworn January 12, 2004, paragraph 3 of your Affidavit. Once again this is a case of somebody preparing an Affidavit for you and you agreeing with it, correct?
A Correct.

306 Q Thank you. In paragraph 6 of your Affidavit you state, After further review of the guidelines, the NNC, which is the National NISA Committee, adopted the following motion at their October 24th, 1994 meeting. Do you see where you say that?
A Yes.

307 Q You got that from documents; did you not?
A Yes.

308 Q Because I would suggest to you that that’s not correct what you state there?
A Well the motion was presented to the NNC, and it was the signatories that were—the program signatories that voted on the motion.

309 Q But not the National NISA Committee?
A Who voted on the motion?

310 Q Right.
A It was the program signatories.

316 Q There’s a recording of a vote on page 2.
A Yes, so the day it shows Monday, October 24th is when the date the vote would have been taken.

320 Q Ms. Rutkauskas? And you’ll agree with me that the National NISA Committee consists not only of the provincial and federal representatives, but also producer representatives?
A Correct.

321 Q And they didn’t vote on this motion?
A That’s correct.
MR. HAY: The producers did not.

328 Q On page 1 of the producer handbook the following statement is made, This producer handbook was developed to explain the NISA program to participants. It contains general information only and is not intended to be a substitute for the legislation, regulations and federal/provincial agreements which are the legal authorities for NISA. Do you see where it says that?
A Yes.

329 Q You agree with that of course?
A Yes.

330 Q In other words, it’s the legislation, regulations and the federal/provincial agreement that governs matters such as eligible net sales?
A I guess, yes, it defines eligible net sales, the agreement.

345 Q Did any of the subsequent amendments deal with the point of sale guidelines?
A No because that’s not contained in the agreement.

349 Q MR. ZAKRESKI: And getting back to the motion that we referred to earlier that was attached to your earlier Affidavit, being the matter that was referred to the signatories of the agreement, you’ll agree with me that those particular individuals who voted were not actually the ministers, but were simply the provincial and federal representatives on the National NISA Committee?
A That’s correct.

I have also pointed out numerous false representations made to mislead a willing Federal Court by the Attorney General’s lawyers, but they are too numerous to list here as well.

[Fransisco]

What the heck does NISA have to do with the CWB debate?

[bucket]

I find it odd that the cwb has to ask the government for interim payments (our money) BUT never has to ask the government about these frivilous lawsuits and spending our money on them.

[Raven]

Bucket, It appears the Appeal Court judges in this latest case support your observation when they state at paragraph [53]:

"The authority to deduct corporate expenses from the pools is set out in subsection 33(1) of the Act. None of the expenses listed pertain to advocacy by the Wheat Board on matters of public policy."

Not only does 33(1) list the expenses to be taken from the pool accounts, but section 7(3) refers to costs that are to be paid by the federal government. Its absolutely amazing in the RENOVA case that the CWB fought tooth and nail for farmers to pay for everything. The farmers lost that case but now with this Appeal, it appears that Renova should have been appealled. The judge ignored the Supreme Court rules of interpretation not to make legislation redundant [33(1)] and meaningless [7(3)].

However for now, we should stay focused on the need for export licences for producers. Once you get yours, you are also free of the deductions.

[Fransisco]

This is another one of the big deals from the ruling, the board is constantly sticking it's nose into all sorts of public policy issues. That has to stop. If it continues it looks like it will be doing so illegally.

[cropduster]

With the `big` crop looming on the pairies some of the `government relations` people at least should be axed!!Access to information provides reading of ALL their follies!!