Appeal court reinstates CWB “gag order”

Canada’s Federal Court of Appeal has reinstated a federal government order that blocks the Canadian Wheat Board from spending on public advocacy for its single marketing desk for Prairie wheat and barley.

The appellant court on Tuesday set aside a June 19, 2008 Federal Court decision that had shot down an October 2006 order-in-council issued by Chuck Strahl, who was then the Conservative federal government’s agriculture minister.

The Court of Appeal’s ruling leaves the CWB’s board of directors, a slim majority of whom support the single desk, considering its options.

CWB chairman Larry Hill said Thursday the directors would meet and consider whether to try and take Tuesday’s ruling to the Supreme Court of Canada.

Hill, who farms near Swift Current, Sask., said the Court of Appeal’s decision shouldn’t mean a dramatic change in how the board conducts its business. It isn’t currently running advertising or otherwise campaigning for the single desk, he said.

“Basically what we do as directors and at the CWB is to get farmers factual information and I think we can continue to do that,” he told the Manitoba Co-operator’s Allan Dawson. “So I don’t think it’s going to change the way we do things dramatically other than that we have to make sure we obey the law.”

Tuesday’s ruling rethinks the extent of the CWB board of directors’ autonomy in decision-making, a point that Hill said the CWB’s legal team would have to review. “It’s certainly not our understanding that the government is in charge,” Hill told the Co-operator.

Government funds

Among the reasons the Court of Appeal gave Tuesday for setting aside Federal Court Justice Roger Hughes’ ruling, it noted that Hughes had conducted his analysis of the case on the basis that Strahl’s order “provides authority for constraining or directing the expenditure of funds.”

Hughes, the appeal court said, ruled that the government failed to show its order came from any genuine concern for the protection of public funds.

However, the appeal court said, “on a plain reading, subsection 18(1) is not restricted to the protection of funds… On its face, the power to direct extends to the full range of activity which the (Canadian Wheat Board Act) authorizes the Wheat Board to conduct.”

The original order’s “plain purpose,” the appeal court said Tuesday, “is to ensure that the Wheat Board no longer advocates a mandate that is at odds with government policy.” Hughes’ suggestion that the order was “concealed under the guise of a non-existent financial purpose is, with respect, misconceived.”

The CWB’s ability to advocate for the single desk could only be by virtue of the general power it has under the CWB Act to carry on its operations, the appeal court said. And after Strahl’s order was issued, spending funds to advocate for a single desk was “no longer in the best interest of the Wheat Board for purposes of the Act.”

The appeal court also shot down Justice Hughes’ assertion that the CWB is entitled to Charter protection of its freedom of expression. “The Wheat Board is a creature of statute and as such, it has no powers, rights and duties save those bestowed on it” by the CWB Act, the court said.


In short, Tuesday’s ruling “makes it clear that politicians have the ability to control the operations of the CWB,” said Kevin Bender, president of the Western Canadian Wheat Growers Association, a group supporting deregulation of the CWB’s single desk.

“While their (the government’s) intervention was welcome in this instance, the Wheat Growers would rather see the CWB become voluntary and truly accountable to farmers,” said Bender, who farms at Bentley, Alta., northwest of Red Deer.

Meanwhile, he said, the ruling “means the CWB can no longer take farmers’ money to promote its monopoly.”

Prince Edward Island MP Wayne Easter, the federal Liberals’ agriculture critic, said Friday he was concerned not with the ruling itself, “but with this Conservative government’s determination to use whatever means it can to discredit, undermine and ultimately damage the CWB.

“This is a government that has maintained the ideological agenda of organizations such as the Western Canadian Wheat Growers which is to destroy the CWB by every means other then the legitimate one provided under law — a binding plebiscite of farmers on an honest question.”

— More details on, and reaction to, the Federal Court of Appeal’s ruling will be available in the July 2 issue of the Manitoba Co-operator.

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