CWB Appeal

[Raven]

I have read the CWB’s application to appeal to the supreme court posted by Parsley’s Notebook, and it is classic Wheat Board.

They have two “well, would you believe…?” arguments.

The first is that the CWB is statutorily mandated to be above the government so the government can’t give them orders.
The second is they are below government, and therefore have a claim under the Charter.

Neither is valid. Because they really have no legal grounds from the legislation, (except a Cabinet regulation), they are desperately trying to sell perceptions by repetition.

To emphasize the illusion that they are above the government they state:

Page 2 para 2 and page 88, para 6: “…Parliament has granted the CWB the exclusive legal authority to sell wheat and barley produced in the designated area… historically … described as the CWB’s ‘single desk’.”
Page 5 para 14 “… its [CWB’s] statutory mandate (which reflects the existing law).”
Page 94, para 22 “…statutory marketing mandate …”
Page 11, para 27 “… its existing statutory mandate…”
Page 12, para 33 “…the statutory mandate that Parliament has granted to it [CWB] by legislation. The single desk is the law of Canada.”

Then to emphasize they are below and need protection from the government, they state:

Page 5, para 15: “… statutory entities … which exercise non-governmental functions.”
Page 87, para 44: “…the CWB, which is not government…”
Page 90, para 13: “… the CWB… [is defined as] … not part of government…”
Page 93, para 20 “Justice Hughes concluded the CWB was not part of government…”
Page 98, para 35: “… statutory entities … which exercise non-governmental functions.”
Page 101, para 44: “…in its [CWB’s] exercise of a non-governmental activity.”
Page 101, para 45: “…not part of government.”

So “well, would you believe…” the CWB is a non-government statutory entity that is simultaneously above and below the government?

[Fransisco]

Sounds like self canceling arguments to me.

I see what you mean about the arguments being classic wheat board true to form they are masters at sucking and blowing at the same time.

[Fransisco]

From this weeks AGRIWEEK

<b>Run to mama</b>

The Wheat Board, after all, is on its way to the Supreme Court It was as if a war broke out and no one noticed. On Sept. 21, with no bombastic press release, no mention in its propaganda organs and no other notice, big-shot Toronto and Ottawa lawyers for the Canadian Wheat Board filed for leave to appeal to the Supreme Court of Canada the June 23 decision of the Federal Court of Appeal which established that the government of Canada does actually have some authority over the Board. Nor did agriminister Ritz have anything at all to say, even two weeks after the filing.

The Wheat Board’s directors decided, more or less, to attempt an appeal as long ago as July 23. The application was filed on the last possible day, but when no announcement was forthcoming it was assumed by many, including this newsletter, that the directors had changed their minds and wisely decided to drop the case. No
such luck, and hundreds of thousands of dollars of producers’ money will now be spent as the directors try to defend their importance and supremacy.

The appeal cites numerous alleged grounds, but the main basis is the claim that the Board, under its legislation, is a special type of entity which is self-governing and thus outside the sort of supervision which the government may have over common crown corporations.

The next question is whether the Supreme Court will take the case. By stressing its uniqueness, the Board’s lawyers may actually have reduced the chances that the appeal will be heard. The top court accepts fewer than 80 cases a year out of hundreds submitted, and usually takes only those with wide constitutional implications and applicability, or which will help guide lower court decisions in the future. The court usually decides in about three months whether a given case will be heard; the
decision is made by a panel of three Supreme Court justices. If it takes the case, the hearing likely will not be before the spring of 2010. Its decision will be the end of the line: there is no higher court.

[Fransisco]

"they are desperately trying to sell perceptions by repetition"

Again this is classic wheat board, and it is a tactic that has worked on farmers. We'll see if supreme court judges are as easily fooled.

[Raven]

On the other hand, there is the concept of Justice Rothstein who as a Federal Court Judge in 1997 stated in Jackson v. Canada (AG) 1997 141 F.T.R. 1, 7 Admin. L.R. (3d) 138:

Paragraph 8 “I need go no further to be satisfied that the [CWB] can be characterized as a corporation with significant public aspects which involve the carrying out of government policy. Of course, not all the powers conferred by the [CWB Act] are public. Under section 6 of the Act, for example, the [CWB] has been vested with general powers incidental to its business such as to enter into contracts, to enter into ordinary commercial banking arrangements , to acquire and hold real property and generally to do all things necessary and incidental to the carrying out of its operations. However, in keeping with Aeric, the Court must examine the specific power being exercised in this case.”

Paragraph 9 “The power of the [CWB] at issue is an exporting licensing power set out in section 14 of the [CWB Regulations pursuant to Part IV of the Act]. …
The [CWB] derives this export licensing power by reason of paragraphs 45(a) and 46(c) of the [CWB Act]. …”

Paragraph 10. “Under these provisions, the [CWB] is granted a significant regulatory power. The [CWB] is to engage in the granting of export licences for the purposes of carrying out government policy…”

Paragraph 11. “A regulatory power such as the granting of licences is by nature public. There can be no doubt that when the [CWB] is carrying out the licensing power, it is not exercising the general management powers of an ordinary corporation. No ordinary corporation has the power to regulate. Regulatory power is one of the hallmarks of public, as opposed to private commercial activity.”

Rothstein’s analysis is consistent with the facts and remains valid whether the CWB is administered by government appointed commissioners or farmer elected directors.

[haveapulse]

In a weird way the appeal is good; the question needs to be addressed and answered at the Supreme court level.

The CWB was institutionalized as an arm of government, so the government could control our wheat during and after WWII using our resources as an arm of public and interantional policy for Canada, and I beleive Goodale insured it would remain ever thus.

Only the CWB supporters believe otherwise.

Problem is; does it really matter to our multi generational sentencing that is the question.

[haveapulse]

Haveapulse,

You say: "Problem is; does it really matter to our multi generational sentencing that is the question."

I believe it is very important. With the government in control of national licencing, (as Rothetein says) they can order the CWB to issue export licences to all producers without discrimination based upon where you live in Canada.

[Raven]

Haveapulse,

You say: "Problem is; does it really matter to our multi generational sentencing that is the question."

I believe it is very important. With the government in control of national licencing, (as Rothetein says) they can order the CWB to issue export licences to all producers without discrimination based upon where you live in Canada.

[haveapulse]

Hope springs eternal, thanks Raven.

[TOM4CWB]

Raven,

GOOD WORK!

If the Supreme court hears this case and actually clarifies these points... that would help!

If the hearing/leave is denied and the CWB will be transformed and Goodale's experiment will have failed.

Goodale set up the CWB Act to be untouchable by Canadian courts in 1998, private and public at the same time.

It will be very interesting to see where the Canadian Supreme Court weighs in on the matter!

The really really big test was 1951... when the CWB took the Supreme Court of Canada to court in England and beat down it's (the Supreme Court of Canada's) ruling. Henry Monk would be proud!

[Raven]

Right TOM4CWB. I believe that was the Nolan case. But it was right after the War and what was in question was the Government's authority to expropriate under the "Transition from War Act". During the war, the War Measures Act clearly allowed expropriation, but the Transition Act didn't. The Canadian Supreme Court said the Government couldn't expropriate because the Act didn't clearly authorize it. So the Government went to the Privy Council in England who ruled that expropriation was implied in the Act.

Do you suppose the fact that England needed cheap grain during and after the war had any influence on the good Lords' decision?

However, that is all in the past and we are now dealing with Trade and Commerce legislation and the 1947 amendments which remain essentially unchanged.

The CWB's claim of “power over producers” does not square with past Supreme Court rulings:

In Murphy (1958): “Part III deals with voluntary marketing.”

In Sommerville (1972) before the domestic off-board feed market:

“The Act does not purport to give to the Board complete control of all grain grown in the [designated area]”

“To interpret s.32(b) as applying to the circumstances of this case [AGRICULTURE] would be to apply it for an object outside the intention of the Act and would involve the conclusion that the Act applied to purposes other than the regulation of trade and commerce”.

In The King v. Eastern Terminal Elevator Co. [1925] S.C.R. 434, Supreme Court Justice Mignault J. states:

“Nor can the legislation [Canada Grain Act] be supported as relating to agriculture(B.N.A. Act 1867 sec. 85). The subject matter is only a product of agriculture and an article of trade. It is trade legislation and not for the support or encouragement of agriculture.”

“It [Canada Grain Act] provides, as only the Dominion Parliament can, for the control and handling of grain from the moment it leaves the hands of the grower.”

I would also like to see the Supreme Court address this appeal based on facts and their rules of interpretation.