Proposed farmers’ suit seeks claim on CWB’s assets

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One of Canada’s most prolific class-action lawyers says he plans to seek an 11-figure piece of the Canadian Wheat Board’s assets for Prairie farmers.

Filing a statement of claim Monday in Saskatoon on behalf of representative plaintiff Duane Filson, Regina lawyer Tony Merchant said in a release that those assets, including the CWB’s office building, rail cars and cash on hand, "cannot simply be subsumed by the federal government."

Filson, a farmer, cow-calf producer and municipal reeve at Woodrow, Sask., about 150 km southwest of Moose Jaw, is the plaintiff representing a proposed "class" of all farmers who sold grain to the CWB in 2011 and will sell through the CWB before Aug. 1, 2012.

Merchant’s proposed suit describes the CWB as a trustee de son tort — a body that takes on itself the possession of entrusted property — for farmers, whose money went to set up the CWB’s contingency fund, buy the CWB’s tangible assets and develop its "intangible assets."

In its form following last month’s passage of Bill C-18, which as of Aug. 1 will end the board’s single marketing desk for Prairie wheat and barley, the "government CWB" has been "unjustly enriched" and farmers "deprived of the funds" from those assets, the suit alleges.

The suit’s claims call for total damages of $15.42 billion, including estimated values of:

  • $7.7 billion in "logistics and transportation savings," considered an "intangible asset" for farmers;
  • $2.14 billion, for the net present value of "premium sale prices" obtained each year for barley;
  • $5.3 billion for similar annual premiums on wheat sales;
  • $100 million in the CWB’s contingency fund;
  • $102.06 million, for the CWB’s rail hopper cars;
  • $65 million, prepaid for the purchase of grain laker vessels; and
  • $14 million, for the CWB’s downtown Winnipeg office building.

"A corporate dissolution requires surplus funds, proceeds and assets to be returned to appropriate creditors and stakeholders," Merchant’s statement said.

The dissolution of the pre-Bill C-18 CWB "therefore requires the return of all funds, proceeds and assets… back to the Class, the rightful owners of the CWB value."

"This case does not challenge whether or not dismantling the CWB is a good idea," said Merchant, a former provincial Liberal MLA and federal Liberal candidate (1979, 1980, 1997). His representative client also ran for the Liberals in 2008 and 2011.

"The value realized from CWB assets has to be returned to farmers," Merchant said in a release. "To do otherwise, would resemble a classic case of theft by conversion."

The Reuters news service on Monday quoted federal Agriculture Minister Gerry Ritz as saying it was "disappointing to see further misguided legal action against western Canadian farmers and their right to the same freedoms as farmers in Ontario already enjoy."

The "baseless action," Ritz said, would not affect the deregulation process laid out in Bill C-18, nor would it affect Prairie farmers’ ability to forward-contract wheat or barley for delivery on an open market after Aug. 1.

Merchant’s office is accepting contact information from farmers interested in the proposed suit. The statement of claim noted it’s to be formally served on the federal government sometime within the next six months.

Related stories:

Conservatives’ CWB bill clears Senate, royal assent, Dec. 16, 2011

Suit over canola growers’ lost laptop dropped, April 23, 2010

Farmers to sue CN, CPR over hopper car costs, Nov. 6, 2009