The Federal Court ruling that found Agriculture Minister Gerry Ritz broke the Canadian Wheat Board Act last fall, will be heard by the Federal Court of Appeal in Ottawa May 23.
If the ruling is upheld Stewart Wells, a former wheat board director and member of the Friends of the Canadian Wheat Board (FCWB), expects the federal government will try to appeal to the Supreme Court of Canada.
If the ruling is overturned the FCWB will review the decision before deciding to appeal, Wells said in an interview May 3.
The Supreme Court itself decides if it will hear appeals. If it declines the final judgment stands.
Dec. 7 Federal Court Justice Douglas Campbell ruled Ritz broke the wheat board act by introducing into Parliament Bill C-18, the Marketing Freedom Act for Grain Farmers, which proposed removing the board’s single desk and creating an open market staring Aug. 1.
In a written decision Campbell said under Section 47.1 Ritz had a statutory duty to first consult with the wheat board’s board of directors and get farmers’ approval for the change through a plebiscite. His failure to do so “is an affront to the rule of law,” Justice Campbell wrote.
Despite Campbell’s decision, C-18 was passed by Parliament and proclaimed law in December.
According to Wells, the Appeal Court will hear the same arguments. The FCWB will argue again that the minister was obliged under the law, before killing the board’s single desk, to first consult with the wheat board’s directors and have farmers demonstrate support for the change through a vote.
The federal government will argue Parliament is supreme and therefore the minister didn’t break the law.
“Government can change a law, it can make a law, but it can’t break the law,” Wells said.
According to some observers the government should have removed 47.1 from the act through an amendment and then removed the single desk.
The Appeal Court will also hear a motion from the FCWB that it shouldn’t even hear the appeal because by making C-18 law it ignored the Federal Court’s ruling, Wells said.
“On the one hand the government ignored the ruling yet it didn’t ignore it completely because it’s appealing it,” he said.
Whatever the outcome, the FCWB is continuing its class-action lawsuit against the federal government. The suit requests the board’s monopoly over the sale of western Canadian wheat and barley destined for export or domestic human consumption remain or that western grain farmers receive $17 billion in compensation.
Although Ritz has said the government will cover the transition costs, Wells said he believes the pools are bearing some of those costs.
“The government has a real incentive to make the pool low so the open market looks better in future years,” he said.
Meanwhile, eight former farmer-elected wheat board directors are appealing Manitoba Court of Queen’s Bench Justice Shane Perlmutter’s Feb. 24 decision not to protect the board’s single desk.
Perlmutter ruled he wasn’t bound by Campbell’s decision. He also dismissed the notion that 47.1 required the government to get farmers’ approval to change the board’s mandate.