CWB losses appeal

[Fransisco]

The Board just lost it's ruling on the "Gag" order. Take a look

http://www.siemenssays.com/wp-content/uploads/2009/06/CWB-Gag-order-Appeal-ruling.pdf

The real interesting stuff starts on page 14

[Fransisco]

"While certain actions, such as those with financial implications that could affect the government are explicitly subject to government approval (see for instance paragraphs 6(1)(c), 6(1)(d) or 9(1)(b)), subsection 18(1) is not so limited. This provision allows the Governor in Council to issue directions “… with respect to the manner in which any of its operations, powers and duties … shall be conducted, exercised or performed.” <b>On its face, the power to direct extends to the full range of activity which the Act authorizes the Wheat Board to conduct.</b> To the extent that the Federal Court Judge was of the view that the authority so conferred is aimed at protecting government funds, he erred."

[Fransisco]

"[45] The plain purpose of the Direction/Order, when read together with the RIAS, is to ensure that the Wheat Board no longer advocates a mandate that is at odds with government policy using funds made available to it under the Act. Nowhere is it made to appear that the purpose is to protect funds. The suggestion by the Federal Court Judge that the true purpose of the Direction/Order was concealed under the guise of a non-existent financial purpose is, with respect, misconceived."

Reading between the lines here I think this Judge just called the previous Judge an idiot.

[Fransisco]

[47] Turning to the first step, subsection 18(1) is very broad. As noted, it authorizes the government, through the auspices of the Governor in Council, to direct the Wheat Board with respect to the <b>full range</b> of activity conducted by the Wheat Board.

[Fransisco]

[48] Counsel for the respondent argued that <b>the 1998 amendments</b> implicitly limit the broad grant of authority set out in subsection 18(1). He referred in particular to the fact that the Wheat Board ceased to be an agent of the Crown or a Crown Corporation (subsection 4(2)), that the majority of the directors was henceforth elected by producers (subsection 3.02(1)), and that the Minister responsible for the Wheat Board was bound by statute to consult with the board of directors and conduct a producer vote before introducing legislation affecting the monopoly created under the Act (section 47.1).

[49] These changes do point to an increased role for the board of directors. However, <b>when these amendments were brought, subsection 18(1) was not only preserved but strengthened. Beyond subsection 3.12(2) which sets out the directors’ duty to comply with any direction given pursuant to subsection 18(1), subsection 18(1.2) was added to provide that compliance with a direction is “deemed” to be in the best interest of the Wheat Board. At the same time, the directors were relieved from liability which could arise from such compliance</b> (subsection 18(1.1)).

[50] When regard is had to the 1998 amendments as a whole and the fact that since that time, the majority of the directors are elected by producers, it becomes clear that <b>subsection 18(1) was intended to provide the Governor in Council with the authority to direct the Wheat Board on any matter of governance</b> in the event of a disagreement with the board of directors. By requiring that this authority be exercised formally and in public, by Order in Council, Parliament ensured that the government would be accountable politically for the use made of that authority. The repository of the power and the mode of its exercise reinforce the broad scope of the authority set out in subsection 18(1) and <b>Parliament’s intent that the government should retain the ultimate power to decide in the event of a disagreement.</b>

[51] I should add that given the importance of the 1998 amendments, the fact that the power to direct has never been used over the Wheat Board’s objection and that directions have been resorted to sparingly (21 times over the last 45 years) (Measner Affidavit, Appeal Book, Vol. I, p. 74, para. 17) is of no significance for the purpose of this proceeding.

[Fransisco]

[53] The Direction/Order also appears to be consistent with the Act read as a whole. Pursuant to section 5, the Wheat Board’s mandate is to market, in interprovincial and export trade, grain grown in Canada. To carry out this mandate, the Wheat Board is given extraordinary powers over grain producers, including the requirement that producers sell their wheat and barley to the Wheat Board, and the authority to deduct corporate expenses before remitting proceeds to the producer. <b>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.</b>

[Fransisco]

[56] It follows that, after the Direction/Order was issued, spending producer funds to advocate a “single desk” was no longer in the best interest of the Wheat Board for purposes of the Act. If intra vires, the spending restriction embodied in the Direction/Order has the same effect as if it was written in the Act itself. That is the inescapable effect of subsection 18(1.2).
[57] I therefore conclude that the Direction/Order comes within the ambit of subsection 18(1) and that the Federal Court Judge erred in holding otherwise.

[Fransisco]

[58] The same reasoning disposes of the Charter issue

[59] <b>The Wheat Board is a creature of statute and as such, it has no powers, rights and duties save those bestowed on it by the Act.</b> Since I have found that as a result of the Direction/Order the Wheat Board has no authority under the Act to use producer funds to advocate against government policy, there is no Charter right to protect pursuant to section 2(b).

[Fransisco]

Very interesting ruling.

-Board can not spend farmers money on politics.

-Government has final say on everything.

-Goodales '98 amendments gave more power to the government not less.

So what are the Conservatives going to do with this? Looks to me like they can do plenty, the question as always is do they want to?

[TOM4CWB]

Fransisco,

Finally... judges with some common sense! What a delightful change!

God bless Canada!

Do you think the CWB will appeal?

[checking]

Why hasn't this been posted on the "News" part of the CWB site? The decision was awarded "with costs". Looks like farmers have lots of money for this crap. Will there be another round on this? - I'd count on it.

[TOM4CWB]

Checking,

Ya think?

The CWB wouldn't be 'promoting' the 'single desk'... they would be 'demoting' the Corp... and going against the pocket books of growers and sucking more money out of the pools... the very issue that started this!

What do you think the Supreme Court of Canada would do with this?!

I say take it out of Ians/Wards salary... if they appeal!

[Fransisco]

Not sure if they'll appeal. Isn't the next step the supreme court? I doubt if they'd even agree to hear the case.

Then again the monopoly fanatics are going to be pushing the Board to fight the ruling.

[Fransisco]

I remember when the monopoly lost the barley plebiscite and then took the government to court for trying to do what farmers wanted and the Board line was all about the rule of law, how the government was not above the rule of law and it was the law that mattered not farmers opinions. Looks like this time it's the board that's been acting illegally. I betcha the line switch's back to bbb,but,but,but farmers want it, sniff, sniff.

[redbaron]

Fransisco here is your answer to the appeal
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20090627/wheat_appeal_090627/20090627?hub=Politics