Farmers Seek Sanction of Minister: Friends of the Canadian Wheat Board v Canada

The Canadian Wheat Board (CWB) was a scheme created by the federal government that bought all the wheat and barley produced by farmers in Manitoba, Saskatchewan, Alberta, and some parts of British Columbia and marketed it on behalf of farmers on the international markets. Subject to limited exceptions, farmers could not sell or transport wheat out-of-province except through the CWB. The oft-cited benefit of this scheme was that as a singular force in the international wheat markets, the CWB was able to secure prices for the sale of grains that Canadian farmers would not be able to secure acting as individuals.

In October 2011, the Harper government introduced Bill C-18, the Marketing Freedom for Grain Farmers Act, SC 2011, c 25, which proposed to repeal the Canadian Wheat Board Act, RSC 1985, c C-24 [CWBA], effectively eliminating the Canadian Wheat Board. This move, in addition to being unpopular policy for a lot of farmers, was alleged to have been in contravention of a section 47.1 of the CWBA that required the Minister to consult farmers, and for farmers to consent to any changes the CWB. A group of farmers took their claim to the courts, asking for a declaration that the Minister acted in breach of section 47.1. Ultimately, the federal court sided with the farmers, granting the declaration.

In this post, I will outline the court’s decision in Friends of the Canadian Wheat Board v Canada (Minister of Agriculture), 2011 FC 1432, discuss the issue of Parliamentary Supremacy left aside by the court, and conclude with some remarks on the implications of this ruling for Bill C-18.

The Minister’s Breach of Statutory Obligation

Section 47.1 of the CWBA reads (emphasis mine):

47.1  The Minister shall not cause to be introduced in Parliament a bill that would exclude any kind, type, class or grade of wheat or barley, or wheat or barley produced in any area in Canada, from the provisions of Part IV, either in whole or in part, or generally, or for any period, or that would extend the application of Part III or Part IV or both Parts III and IV to any other grain, unless

(a) the Minister has consulted with the board about the exclusion or extension; and

(b) the producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister.

It is undisputed that the Minister did not engage in any consultation, nor was there a vote before the introduction of Bill C-18. The claimants say that the Minister is thus in violation of his obligations under section 47.1.

The Minister says that the language of section 47.1 only imposes a process when there is a subtraction or addition of a particular grain in the marketing regime. It does not limit the future repeal of the CBWA, which it says is a legislative decision for Parliament and not the Court. The principle of Parliamentary Supremacy, it says, requires that section 47.1 not be interpreted so broadly as to give a perpetual veto to grain producers over the continued existence of the CWB and the CWBA. Instead, section 47.1 contemplates moving various grains in and out of the regime, but does not refer to changes in the nature or existence of the CWB itself.

Court’s Decision

Looking to the legislative history of section 47.1, Campbell J finds that the intention of section 47.1 was to prohibit legislation affecting the structure of the CWB without consultation and consent from the farmers. According to Campbell J, this interpretation is consistent with adherence to the rule of law. The rule of law, it is said, requires that the public understand the rules they are bound by, and the court’s interpretation gives effect to the words of section 47.1 in the way that ordinary citizens would understand and interpret them.

Parliamentary Supremacy

The most interesting issue in this case was dealt with in short shrift by the court. The Minister argued that the claimant’s interpretation of section 47.1 challenged Parliamentary Supremacy, which provides that Parliament can make, change or repeal any legislation and is not bound by any law in this regard. If this statutory provision violates Parliamentary Supremacy, then there is a strong argument that the provision is not law at all, or perhaps that it should be read down so as not to infringe on Parliament’s law-making ability.

The claimants respond by relying on an exception to Parliamentary Supremacy, which allows that Parliaments bind themselves to self-imposed rules as to the “manner and form” in which statues are enacted. The court, however, refused to answer this question as there was no notice of a constitutional question, and argument was not properly presented to the court.

In my view, the argument that section 47.1 is a rule that binds only the manner and form of law making is a stretch. On Campbell J’s interpretation, section 47.1(b) contemplates that farmers have a substantive veto on laws that they do not support. This veto is held against Parliament and could limit Parliament’s law-making ability. To the extent that section 47.1(b) prevents Parliament from repealing the CWBA, the provision must be invalid as being a violation of Parliamentary Supremacy.

The requirement to consult farmers in section 47.1(a) is a procedural hurdle, and is more readily characterized as limiting the “manner and form” of Parliament’s law-making ability. On this analysis, Campbell J’s pronouncement that the Minister was required to gain the consent of farmers before introducing Bill C-18 was in error given a proper consideration of the implications of Parliamentary Supremacy.

The Legality of Bill C-18

Importantly, the court did not make any statement on the legality of Bill C-18 – the decision purported to limit itself to the Minister’s omission to consult the farmers and allow for a vote on the proposed legislation. Bill C-18 was given Royal Assent in December 2011, and is now the law in Canada. If we agree that the Minister violated section 47.1(a) by introducing Bill C-18 without consultation, this begs an important question: is a law that was passed without adhering to the legally required procedures any law at all?

In administrative law, if a decision is made without due process, that decision is usually sent back for redetermination to the administrative actor. It is uncertain whether a court would extend this principle over Parliament, essentially invalidating a law because Parliament did not adhere to some statutorily required process. The courts have historically stayed out of making pronouncements on the legality of Parliament’s law-making processes, but Campbell J’s ruling would seem to open the door to exactly that. Certainly this possibility raises serious questions about the institutional relationship of the Court and Parliament.

Fortunate for us interested in this legal conundrum, this issue will likely be squarely addressed in a forthcoming injunction ruling out of Manitoba.

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