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Man. court rejects ex-CWB directors' bid to halt C-18

Federal legislation to overhaul the Canadian Wheat Board has withstood a legal test filed by the eight CWB directors who were legislated out of their jobs.

Justice Shane Perlmutter of Manitoba Court of Queen's Bench on Friday dismissed the eight ex-directors' motion, filed in December, for an injunction against federal Bill C-18, the Marketing Freedom for Grain Farmers Act.

The legal test for any such injunction, Perlmutter wrote, is to see 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.

To that end, he described the ex-directors' case as "weak" and wrote he saw little in it that would favour granting an injunction on the basis of either "irreparable harm" or the "balance of convenience."

Perlmutter wrote that the "only substantive basis" on which the ex-directors' case relied was that C-18 violated section 47.1 of the Canadian Wheat Board Act -- the soon-to-be-repealed legislation governing the board's single-desk marketing authority over Prairie wheat and barley.

In a separate Federal Court ruling late in 2011, on a case filed by the growers' group Friends of the Canadian Wheat Board (FCWB), Judge Douglas Campbell found Agriculture Minister Gerry Ritz's actions -- introducing C-18 without first holding a farmer plebiscite as per 47.1 -- to be "an affront to the rule of law."

However, Perlmutter said he is "not bound by (Campbell's) decision" and instead ruled that 47.1 does not deal with an all-out "revamping of the single desk," but rather the addition or subtraction of grains from the single-desk regime.

He 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.

Section 47.1, he wrote, "does not use language showing that Parliament intended... to bind itself or restrict the legislative powers of its members with respect to revamping the single desk or repealing the CWB Act."

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.

"Undesirable effect"

On the matter of "irreparable harm," Perlmutter said, it is "far from clear that producers' incomes will be adversely affected" if the single desk were deregulated.

Nor, he said, has it been shown that Prairie farmers would be harmed if "deprived of CWB elected directors," if the loss is limited to those directors' safeguarding of a single desk which will no longer exist.

The directors were still employed by the CWB when they filed their case with Perlmutter in December. The CWB cut its own ties to this case after C-18 was passed and the directors were fired.

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 on Aug. 1 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 Friday. "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 separate release Friday. "The court decision removes any lingering doubt over whether we will gain an open market in wheat and barley on Aug. 1."

"Not the last word"

However, Perlmutter's decision doesn't halt other court cases related to C-18, which remains the target of a proposed class-action suit and constitutional challenge announced last week by the FCWB.

The group said it would file in Federal Court in Ottawa to "restore the (pre-C-18) Canadian Wheat Board and recover damages farmers have suffered as a result of Ottawa's tampering with western grain marketing."

"This is a question of due process and the rule of law itself. (Campbell) has already ruled that Ottawa's actions are 'an affront to the rule of law' and we believe everyone, including (Ritz), must follow the law," Bill Gehl, chair of the Canadian Wheat Board Alliance, a supporter of the FCWB suit, said in a separate release Friday.

"The ruling of a provincial judge is certainly not the last word on this issue," he said.

Related stories:
CWB single-desk supporters file for new class action,
Feb. 16, 2012
CWB directors seek court order blocking C-18,
Dec. 14, 2011
Federal judge rips Ritz's plans for CWB reform,
Dec. 7, 2011


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