CWB Wants To Appeal “Gag Order” Before The Supreme Court

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The struggle over who controls the Canadian Wheat Board (CWB) – its board of directors or the federal government – might be decided by the Supreme Court of Canada.

The CWB will seek leave to appeal to the Supreme Court a June 23 Federal Court of Appeal decision that restored the federal government’s “gag order,” making it illegal for the CWB to spend money advocating retention of its monopoly marketing powers. There’s no guarantee, however, that the Supreme Court will hear the case. If it doesn’t, the ruling favouring the government stands.

“We think it’s a fundamental issue to the CWB,” CWB chair and Swift Current farmer Larry Hill said in an interview July 24. “It’s about farmers having control of the Canadian Wheat Board. It’s as simple as that. We think that the board is accountable to farmers and should be free to direct the organization.

“I was there when (then agriculture) minister (Ralph) Goodale met with the first (CWB) board of directors and he said it was the intention of the (1998) amendments (to the CWB Act) to put farmers in charge of the CWB.”

Last month Agriculture Minister Gerry Ritz said the CWB should invest farmers’ money to market grain instead of paying lawyers’ fees for needless court action.

Hill declined to discuss what legal arguments the CWB will present to convince the Supreme Court to hear the appeal and then rule in the CWB’s favour. But the CWB’s legal department believes the CWB has a good case, Hill added.

In the CWB’s 2008 farmer survey, 77 per cent said farmers, not the government, should decide the CWB’s future.

On June 19, 2008, Justice Roger Hughes ruled the federal government overstepped its authority by ordering the CWB not to spend money advocating to keep its single-desk powers.

He described then minister of agriculture Chuck Strahl’s actions as “overzealous,” and rejected the minister’s argument that he has a duty to safeguard farmers’ money earned through the CWB.

“I do not find such a duty set out directly or by reasonable implication to the (CWB) act,” Hughes wrote in his 34-page decision. “To the contrary, the provision of a board of directors… places the duty to safeguard the producers’ interests with the board, not the minister.”


Justice Hughes didn’t buy the government’s argument the order was about saving itself or farmers money.

“It is entirely clear, therefore, that the (government) directive is motivated principally to silencing the wheat board in respect of any promotion of a ‘single-desk’ policy that it might do.”

In its appeal, the government agreed its motivation is to silence the CWB so it doesn’t undermine government policy.

Federal Appeal Court Justice Marc Noel overturned Hughes’ ruling June 23. Quoting from the CWB Act, he wrote in a 25-page decision that Section 18(1) of the CWB Act allows the Governor in Council (cabinet) to issue directions “‘with respect to the manner in which any of its (CWB) operations, powers and duties… shall be conducted, exercised or performed.’”

Noel acknowledged the CWB is no longer a Crown agency, but wrote that under the current legislation when there’s a dispute between the CWB and the government, the government has the legal power to prevail.

The CWB must apply by Sept. 22 to the Supreme Court to hear an appeal, Hill said. The court is expected decide by February or March next year. If it hears the appeal it might happen in the fall of 2010 with a decision rendered by the spring of 2011. [email protected]

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