Top court’s dismissal halts farmers’ suit over CWB assets

The bulk of a proposed class action by four Prairie farmers, over what they called the federal government’s “expropriation” of Canadian Wheat Board assets, has hit its final wall.

The Supreme Court of Canada on Thursday dismissed, with costs, the farmers’ application for leave to appeal their 2013 loss in Federal Court.

The four — Andrew Dennis of Brookdale, Man., Nathan Macklin of DeBolt, Alta., Harold Bell of Fort St. John, B.C. and ex-CWB director Ian McCreary of Bladworth, Sask. — had sought to lead a class action on behalf of Prairie wheat and barley growers, claiming about $17.06 billion for damages they say stem from the end of the CWB’s single marketing desk.

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Their suit was filed in the wake of the federal Marketing Freedom for Grain Farmers Act taking effect in 2012, ending the Wheat Board’s monopoly on Prairie wheat, durum and barley exports and firing the farmer-elected portion of the CWB’s board of directors.

The former board now pools and markets wheat, barley, durum and canola under the CWB brand, through handling arrangements with Prairie grain companies and through a network-in-progress of its own inland and port grain handling assets.

Friends of the Canadian Wheat Board — a farmer group that unsuccessfully fought the Marketing Freedom Act in court in 2012 and later backed the four farmers’ suit — is “naturally disappointed” by the latest dismissal, spokesman Stewart Wells, another ex-CWB director, said Thursday.

Canada’s legal system, he said, “has quite simply not been able to afford justice to western Canadian farmers so far.”

Federal Agriculture Minister Gerry Ritz, in a separate statement Thursday, said the top court’s ruling “upholds western Canadian farmers’ right to marketing freedom.”

Since his legislation took effect, an “overwhelming majority” of Prairie farmers have “embraced the new economic opportunities” it’s created, Ritz said, adding that “marketing freedom is and will remain the law of the land.”

The Supreme Court dismissal upholds Justice Daniele Tremblay-Lamer’s 2013 ruling at the Federal Court, where the farmers, she wrote, claimed the federal government had “unlawfully expropriated assets belonging to the CWB in which the plaintiffs had an interest.”

The Crown, she wrote, couldn’t take away one’s property without compensation “unless the statute clearly provides otherwise,” but the farmers, in their suit, did not establish “a de facto taking” that would involve compensation.

The farmers’ claim, she said, showed neither “an acquisition of a beneficial interest in the property” nor “removal of all reasonable uses of the property” — and the farmers’ loss of the CWB single desk to changes in legislation “is not enough in itself to claim a loss of a property interest.”

“Should have been paid”

That said, Tremblay-Lamer’s ruling also allowed the farmers’ remaining claim to continue, in which they allege the federal government, during the Wheat Board’s 2011-12 pool period, “used monies that should have been paid to producers… to cover substantial costs and losses” relating to CWB’s shift away from the single desk.

The farmers, in that part of their suit, also claimed the government “failed to establish a reasonable price for grain remaining unsold after the 2011-12 pool period… (and thus) caused an improper transfer from the amount to be distributed to producers.”

On that point, Tremblay-Lamer wrote, government lawyers presented “no arguments… to demonstrate that the claims are untrue or could not succeed at trial.”

FCWB’s Wells said Thursday that Canada’s courts thus gave the farmers “a green light to proceed with the parts of the class-action case based on the misallocation of CWB pool account funds in 2011-12, and we will be turning our attention to those details in the coming weeks.”

In the meantime, FCWB said, the government’s “highly dysfunctional” replacement system has led the spread between port prices and farm gate prices to widen, causing losses estimated at $3 billion in 2014-15. “Those price spreads have not returned to competitive levels, so farmer losses continue to mount.”

Canada’s customers, Wells added, “are now complaining about Canadian quality and Canadian grain is reported to be lowest price on some international tenders. The dozens of grain ships waiting in Vancouver are only the most visible symptom of this mess.” — AGCanada.com Network

 

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