Minister tendered proposed legislation without conducting consultation

MARKETING

Minister tendered proposed legislation without conducting consultation

Canadian Wheat Board charged with marketing Canadian grain in interprovincial and export trade. Section 47.1 of Canadian Wheat Board Act (“CWBA”) requires Minister of Agriculture to engage in consultative process with board and to gain consent of Western Canadian wheat and barley producers with respect to proposed changes to well-established process of marketing grains in Canada. Minister unilaterally proceeding to revolutionize process by securing imminent passage of “An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts” from Marketing Freedom for Grain Farmers Act (Can.). Intention of proposed legislation to replace present centralized marketing system with marketing freedom for grain farmers. Board and “producers” (those persons that farm grain in relevant areas) applied for declaration that Minister’s conduct constituted affront to rule of law. Sole question for determination whether Minister breached process requirements of s. 47.1 and, if so, appropriate relief. Application for declaration of breach granted. Undisputed that Minister tendered proposed legislation without conducting consultation and gaining consent expressed in s. 47.1 of CWBA. Contextual historical approach to interpretation of CWBA leads to conclusion that board’s democratic marketing practices “significant and fundamental” because long standing and strongly supported by large number of grain producers. Support worthy of respect. Democratic structure important to Canada’s international trade obligations under NAFTA. Correct interpretation should also include Minister’s perspective. CWBA intended to require Minister to consult and gain consent where addition or subtraction of particular grains from marketing regime contemplated or change to democratic structure of board contemplated. Unreasonable to interpret CWBA to conclude that Minister’s duty to consult and gain consent does not apply when dismantling board. Declaration that Minister’s conduct in breach of CWBA granted.

Friends of the Canadian Wheat Board v. Canada (Attorney General) (Dec. 7, 2011, F.C., Campbell J., File No. T-1057-11; T-1735-11) 211 A.C.W.S. (3d) 338 (25 pp.).