RECENT NEWS - Class Action Lawsuit (launched February 15, 2012)
Index
Background to Feb. 3, 2012
1. Federal Court - Status - Minister of Agriculture found GUILTY - On Government Appeal
-
Farmer's Vote
- Court Rule's in Favour of FCWB
- Government Appeals
- Bill C-18 Receives Royal Assent
- Board of Directors Replaced
- Federal Government Expedites Appeal
- Update as of Feb. 20 - Federal Government Structures Appeal
2. Injunction - Court of Queen's Bench
- Justice Perlmutter denied injunction of Bill C-18 - FCWB Appealling Decision
3. Class Action Lawsuit - Launched on Feb. 15, 2012 - Court Case date TBD
In the Courtroom
Background to February 3, 2012
The purpose of this section is to outline some of the ongoing legal issues and court cases in the challenge to ensure that Western Canadian farmers retain control of the structure of their grain marketing system.
While referencing past actions, its focus will be on upcoming court appearances: their meaning, timelines, and possible consequences. While every effort will be made to be as accurate as possible, it should be realized that this information is provided as a layman’s guide only.
For decades farmers have worked to control their grain marketing system. Now we are working together under the banner of “The Friends of the Canadian Wheat Board” (FCWB). The FCWB have a longstanding commitment to ensure farmers’ democratic rights are recognized. They have the experience and success in using the court system to defend the interests of grain farmers. This made them the unanimous choice for spearheading the legal work to return our Wheat Board to farmer control.
Representatives from “Friends of the CWB”, “CWB Alliance”, “Producer Car Shippers of Canada”, “National Farmers Union” and the eight farmer-elected CWB deposed directors have agreed to work together on this issue. This consolidation will ensure effective coordination of our efforts, and maximize the efficient use of funds.
Public Donations and Support
friendsofcwb.ca/donate
Several legal actions are ongoing, with more possible. We urge everyone who supports democracy and/or understands the benefits of single desk marketing through the CWB to get personally involved. All donations are appreciated and confidential.
Federal Court of Canada
The current engagement in Federal Court started on June 27, 2011, when the FCWB filed a motion asking the court if the federal government must abide by the “The Canadian Wheat Board Act”, which states that producers must have a vote on changes to the CWB’s mandate (Section 47.1)
This case wound its way through the courts over the summer and fall. The Friends successfully countered a motion by the federal government to have the case dismissed, and another to have evidence heard behind closed doors. Eventually, a court date was set for December 6, 2011.
Farmer's Vote
In the meantime the federal government steadfastly refused to hold either the legally required consultation with the CWB board, or the farmer plebiscite. The CWB therefore felt obligated to hold such a plebiscite to gauge farmer support for the retention of the single desk. The final result of the vote (scrutinered by Meyer Norris Penney) was 62% for wheat and 51% for barley in favour of keeping the single desk.
During August, the CWB held seven public meetings across western Canada to inform farmers of the issues and to get farmer input. All farmers and the public were invited to those meetings, with over 2200 people attending. Farmers made it plain that they expected their elected directors to defend the CWB’s single desk.
CWB takes the Federal Government to Court
The federal government refused to follow the law and engage with the CWB board of directors in a meaningful way. The board had sent 3 letters, plus several personal invitations, to Agriculture Minister Gerry Ritz asking him to attend their board meetings. Each one was refused.
On October 18th, 2011 Minister Ritz introduced Bill C-18 (An Act to reorganize the Canadian Wheat Board) into the House of Commons. The CWB board of directors met the following week to discuss the contents of Bill C-18, and on October 26, 2011 they announced a court challenge based on grounds similar to the FCWB case. This court challenge named as plaintiffs the CWB as an organization, and also named the eight elected pro-single-desk directors as individuals.
Over the following weeks, the federal government proceeded to use unseemly and unprecedented Parliamentary tactics in both the House of Commons and Senate to push Bill C-18 forward. One of the most significant economic changes to the west in a century was pushed through without a single hearing in the west.
Concerned Organizations Join the Legal Battle
Other concerned parties began coming forward to the Federal Court asking to intervene in the case in support of a farmer vote: “The Producer Car Shippers of Canada” filed on their own behalf, while “The Council of Canadians”, “ETC Group”, “Public Service Alliance of Canada” and “Food Secure Canada” filed a joint motion. In the end, given the similarities of the cases, it was agreed to compress them into one hearing on December 6, 2011.
Court rules in Favour of Friends of the Canadian Wheat Board
At the hearing in Winnipeg, in front of an overflowing court room, Justice Douglas Campbell heard the arguments by all parties. At the end of a long day, he announced that he would render his decision (1.) the next day. On December 7th, the judge ruled that Minister Ritz had acted illegally when he introduced Bill C-18 into parliament without having abided by the terms laid down in Section 47.1 of the Canadian Wheat Board Act. The Judge awarded court costs to the plaintiffs.
Government Appeals
Immediately following the decision, Minister Ritz stated that the federal government had no intention of delaying Bill C18’s movement through Parliament. On December 9th, they filed an appeal, but continued pushing the bill through. It is accepted practice for a government to delay a legislative procedure which contravenes the law until all legal requirements have been satisfied. There are only three times in Canadian history that a federal government has simply ignored a decision of the courts. They have all occurred under this government’s tenure.
Bill C-18 receives Royal Assent
Many of those concerned with the legality of the process requested that the Conservative-controlled Senate cease debating Bill C-18, since the court had declared that it was illegally introduced into parliament. The Senate denied the request, and gave the bill third reading on December 14th, 2011. The Governor General was also asked to deny Royal Assent of C-18 for the same reasons. He denied the request and on December 15th 2011 Bill C-18 was given Royal Assent.
December 16th marked the removal of the CWB’s farmer-elected directors thus putting the government-appointed directors in charge of the organization. It was the first time in over 35 years that there would be no farmer input into the CWB’s operations. That same day the new government-appointed CWB board announced it would take no position on the legal challenge, essentially withdrawing from the case.
Federal Government Expedites Appeal
On Jan. 6, 2012 the federal government filed a motion requesting that their appeal of the two cases be heard jointly. The government also requested the appeal be expedited . On January 13, the parties agreed to the joint hearing (20).
Also on January 13th, the farmer-elected deposed directors moved a motion to have the federal government’s appeal of Justice Campbell’s decision quashed (refused to be heard). This request was based on the principle that since the government ignored the Federal Court ruling they were acting in bad faith. Therefore, they should not be allowed to use the courts to appeal a court ruling they have ignored.
On January 30 the federal government filed its responses (2.) & (3.) to the quash motion, and on Feb. 3 the farmer-elected deposed directors submitted their rebuttal (4.) . The date to hear the quash motion has not been set.
UPDATE: As of February 20, 2012
Federal Court Rules on Structure of Government Appeal
On February 14th the Federal Court issued a ruling (21.) which combined the government’s appeal of Justice Campbell’s decision with the two cases of the Friends of the CWB and the deposed directors. This means that the appeal will be heard as a single case.
On February 17th the Federal Court ruled on the Government’s motion to expedite the hearing of their appeal of Judge Campbell’s decision (22.) and the motion of the deposed directors to have that appeal quashed .Chief Justice Pierre Blais determined that it was in the best interests of all parties to have the appeal heard as quickly as possible (24.).
Justice Blais further determined that the deposed directors’ motion to quash the appeal would be heard immediately before the hearing on the appeal itself (23.). This will facilitate the case since the arguments on both issues are applicable to both cases, and will allow parties to have their cases heard fully.
No time has been set for the expedited hearing on the appeal, but it is possible that it may be several months before a court date can be set.
Government Files Factum on Appeal in Federal Court
The Federal Government filed its document (22.) on March 8, 2012 that detailed its arguments for appealing Justice Douglas Campbell’s finding that Minister of Agriculture Gerry Ritz broke the law by the way he introduced Bill C-18.
The deposed farmer-elected directors have 30 days to file their response to this factum, and then a court date will be set to hear the arguments.
One of the original intervening groups in the federal case heard on December 6, 2011 has sought leave (23.) to intervene on the government’s appeal. This group consists of the Council Of Canadians, ETC Group, Food Secure Canada, and the Public Service Alliance of Canada; they filed their motion March 16, 2012.
Injunction of Bill C-18
Court of Queen’s Bench (Manitoba)
After the finding by the Federal Court on Dec. 7th, and the obvious intent of the federal government to ignore Justice Campbell’s decision, the CWB and the individual farmer-elected directors initiated a court challenge in Manitoba’s Court of Queen’s Bench on Dec. 14th. The motion asked the court to rule against the validity of Bill C18, and to reverse its implementation. The motion also requested that an emergency interim injunction be granted to temporarily withdraw the provisions of the bill in order to prevent irreparable harm to the affected parties. This emergency interim injunction would be in place until the court could rule on the validity of Bill C18.
On December 16th Judge Shane Perlmutter heard the arguments for an emergency interim injunction. Also on that day, the farmer-elected directors were officially removed from office and the new government-controlled CWB withdrew from the court case. This left the individual farmer-elected deposed directors as lone plaintiffs in the case.
Judge Perlmutter denied the emergency interim injunction, and instead directed the parties to appear before him on Jan. 17 and 18, 2012 to fully argue their positions (5.) & (6.) regarding the interim injunction. The farmer-elected deposed directors filed a motion asking that validity case be expedited (18.), but the federal government refused (19.), and asked to have the case moved to Federal Court.
The Private Market Tries to Intervene
On Dec.16th the Western Canadian Wheat Growers (WCWG) asked to intervene (9.) (on the government side) at the emergency injunction hearing. Due to their incomplete documentationJustice Perlmutter denied the request. The WCWG then completed their documents and on Jan. 6 submitted them to the court for consideration (7.) & (8.). Lead counsel for the "Conservative Party of Canada" acted on behalf of the WCWG. The farmer-elected deposed directors responded (15.) & (14.)
On Jan. 9, the Western Grain Elevator Association (WGEA) also asked to intervene (10.) & (11.) on the government side, indicating they would soon be filing the necessary background material. On Jan. 10th they filed the material (12.) & (13.) and two days later Justice Perlmutter sent them a letter (16.) denying their request. The WGEA responded announcing their intention to appear before his court on Jan. 17 regardless .
On Jan. 13th, Justice Perlmutter issued a ruling on the WCWG request to intervene at the interim injunction hearing. He denied their request (17.) on the grounds they would add nothing beyond what the federal government could argue.
On Jan. 17th Justice Perlmutter commenced the hearing in Winnipeg, in a room crowded with standing observers. The farmer-elected CWB deposed directors were requesting that an interim injunction be granted, which would temporarily set aside the provisions of Bill C-18 until such a time as the substantive case could be heard. The substantive case on the validity of Bill C-18 would be heard at a later date.
At the start of the injunction hearing, representatives of Viterra and James Richardson International arrived with the WGEA’s counsel who again asked to intervene, but Justice Perlmutter denied their request. He advised them to approach him through the proper channels for appearance on the substantive case. Then after hearing two days of arguments on the injunction, he announced that he would take some time to give his ruling.
Manitoba Court Rules on Injunction
On February 24, 2012 Judge Shane Perlmutter handed down his ruling (21.) on the deposed farmer-elected directors’ request for an injunction to halt Bill C-18 until a full court case on its validity could be heard.
Judge Perlmutter refused to grant the injunction, which left the deposed directors with the option of appealing his decision because of errors in law within his ruling, or accepting the ruling. In either case, the full validity hearing is still on track to be heard before the Manitoba Court of Queen’s Bench.
What will be affected is the timing for the validity hearing. Should the deposed directors chose to appeal Judge Perlmutter’s ruling on the injunction, the appeal will have to be heard and ruled on before the validity case can move forward. The notice of appeal must be filed within 30 days of the Judge’s ruling being registered.
It is likely that an appeal would not be heard for several months, and the validity case for several months after that, unless the court decided to expedite the cases. Even if these processes were expedited, it will be months before a final decision is reached on the validity of Bill C-18.
On February 15th the Friends of the CWB announced that a class action law suit (25.) was being launched in Federal Court on behalf of four plaintiffs, one from each of the western provinces. This lawsuit has the possibility of restoring the CWB to its former position of the single desk, and returning it to the control of farmers.
It will argue that by introducing Bill C-18, the government violated the constitutional right of farmers’ freedom to associate, and their charter right to elect individuals to represent them in that association. These arguments, if accepted by the court, would force the federal government to re-evaluate its approach to the CWB and reaffirm farmers’ rights to have their voices heard on any decision on the CWB’s continuance.
These arguments have a clause which requests that the federal government compensate farmers for revenue which will have been lost due to the government’s actions since December 15th 2011. The amount requested is $2.5 billion.
In the event that it is found that the CWB was illegally dismantled, but that the passage of time and events has made its resurrection impossible, a claim of $17.5 billion dollars is requested. This claim is intended to compensate farmers for the loss of expropriated assets, as well as the loss of past and future earnings attributable to the single desk activities of the CWB.
Who’s In?
This lawsuit claims as its class all individuals and estates who sold grain to the CWB since 2006, or were eligible to vote in a director election since 2008. It is on opt-out action, which means that everyone who meets the above criteria is automatically included in the law suit unless they ask to be removed.
This is in contrast to Tony Merchant’s class action lawsuit which is an opt-in action, which specifically requires you to join the class. As well, Mr. Merchant’s action is only open to individuals who did business with the CWB during 2011.
Farmers can play an important role in the success of this case by registering themselves at the lawsuit website www.cwbclassaction.ca
This action will accomplish two goals:
1) Most importantly, you will be indicating your support of this action. Your expressed support will be invaluable as this case moves through the court system, proving that it has the backing of a large number of prairie farmers. It is notable that this show of support in no way obligates you in any fashion to the continuance of the lawsuit.
2) Second, you will be given the option of being kept up-to-date on what is happening with the case.
UPDATE: As of April 30, 2012
Appeal Launched in Manitoba Court
On April 3, 2012 the deposed directors issued a press release ( ) announcing that they would appeal Judge Perlmutter’s February 24, 2012 decision in Manitoba Court of Queen’s Bench that refused an injunction to halt implementation of Bill C 18.
Formal papers will be filed by June 8, 2012.
Response to Government Appeal Filed in Federal Court
On April 10, 2012, the deposed directors filed their "Memorandum of Fact and Law" (26.) in Federal Court. It was in response to the Federal Government’s appeal of Justice Campbell’s December 7, 2011 decision finding that Minister Ritz had broken the law when he introduced Bill C 18 without a farmer plebiscite.
On April 11, 2012 the Friends of the Canadian Wheat Board filed their "Memorandum" with the Federal Court regarding the same case (27.) & (28.).
On April 16, 2012 the Federal Court granted the public interest group (consisting of the Council of Canadians, the ETC group, the Public Service Alliance of Canada, and Food Secure Canada) leave to intervene (25.).
Court Date Set for Government Appeal in Federal Court
On April 24, 2012 the Federal Court set the date (24.) of May 23, 2012 to hear the Federal Government’s appeal of Justice Campbell’s decision. The hearing will take place in Ottawa at 9:30am.
The court will first hear the deposed directors motion to quash the government’s appeal. The judges will then promptly hear arguments on the appeal itself, unless they have decided to immediately approve the motion to quash.
The court has set aside four hours for this process to be completed.
Stay tuned to this column for updates as they happen In the Courtroom