Former Canadian Wheat Board directors may appeal a Manitoba’s Court of Queens Bench ruling that rejected their bid to delay implementation of the federal legislation removing the board’s monopoly as of Aug. 1.
“We think there are a number of areas where the judge erred and we’re considering an appeal,” Bill Toews, one of the ousted directors, said in an interview Feb. 27.
The former directors are involved in two other legal challenges against overturning the law that will kill the CWB’s monopoly over the sale of western Canadian wheat and barley.
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In a written ruling Justice Shane Perlmutter said the legal test for an injunction is whether there is a “serious question” to be tried, whether the applicant would “suffer irreparable harm” without the injunction and whether the plaintiff or defendant would suffer greater harm as a result.
Weak case
The ex-directors’ case is , Perlmutter wrote, adding he saw little in it that would favour granting an injunction based on either “irreparable harm” or the “balance of convenience.”
Perlmutter wrote that the “only substantive basis” on which the ex-directors’ case relied was that law violated Section 47.1 of the Canadian Wheat Board Act, which will be repealed.
In a separate Federal Court ruling in December filed by Friends of the Canadian Wheat Board (FCWB) and the wheat board, Judge Douglas Campbell found Agriculture Minister Gerry Ritz’s actions — introducing C-18 without first holding a farmer plebiscite as required by 47.1 — to be “an affront to the rule of law.”
However, Perlmutter said he isn’t bound by Campbell’s decision.
Perlmutter also dismissed the notion that 47.1 is “manner-and-form” legislation — that is, a law whose language binds the development of any future legislation.
Nor, he wrote, is the CWB Act of a “constitutional or quasi-constitutional nature such as the Canadian Bill of Rights” or other manner-and-form law.
Concerning irreparable harm, Perlmutter said, it is “far from clear that producers’ incomes will be adversely affected” without the single desk.
It hasn’t been shown Prairie farmers will be hurt by not having elected directors if the loss is limited to those directors’ safeguarding of a single desk, which will no longer exist, Perlmutter said.
Speculative
On the “balance of convenience,” Perlmutter wrote, the ex-directors’ evidence on the “uncertainty, marketplace impact, and Canada’s reputation as a reliable wheat and barley supplier” was speculative and would not outweigh farmers’ loss of the transition period before the end of the single desk if C-18 were to be blocked.
On top of all that, he wrote, any injunction ordered by a Manitoba Queen’s Bench judge would have been “limited to Manitoba” and would have had “the undesirable effect of creating disparities between provinces” — an effect which “would in itself mean that there is no single desk.”
“Western farmers are pleased with the court’s decision today,” Ritz said in a release Feb. 24. “Our government knows that producers need market certainty as they move forward and this decision allows farmers the best possible opportunities to succeed as they transition to an open market.”
“We are now in the clear,” Kevin Bender, president of the pro-deregulation Western Canadian Wheat Growers Association, said in a release. “The court decision removes any lingering doubt over whether we will gain an open market in wheat and barley on Aug. 1.”
However, Perlmutter’s decision doesn’t halt other court cases against C-18.
“This is a question of due process and the rule of law itself,” Bill Gehl, chair of the Canadian Wheat Board Alliance, a supporter of the FCWB suit, said in a release.
“The ruling of a provincial judge is certainly not the last word on this issue.”
