Federal Appeal


Agriculture


Legislative changes do not require consent of democratic institutions affected

MARKETING

Legislative changes do not require consent of democratic institutions affected

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 Canadian Wheat Board and to gain consent of western Canadian wheat and barley producers with respect to proposed changes to well-established process of marketing grains. Minister unilaterally securing imminent passage of 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 applied for declaration that Minister’s conduct constituted affront to rule of law. Sole question was whether Minister breached process requirements of s. 47.1. Federal Court Judge granted declaration, finding that Minister tendered proposed legislation without conducting consultation and gaining consent expressed in s. 47.1. Appeal to Federal Court of Appeal allowed. Under modern contextual approach to statutory interpretation, grammatical and ordinary sense of provision not necessarily determinative. Regard must also be had to context in which words used and purpose of provision considered as whole within legislative scheme. Most significant element is determination of legislative intent. Since its inception, marketing monopoly subject to regulatory exclusions. Section 47.1 largely reverted back to Parliament prior limited regulatory authority of Governor in Council concerning exclusions or inclusions of certain kinds or grades of grain. However, nothing in s. 47.1 or legislative history that suggested Parliament fettered Minister’s authority to introduce and recommend to Parliament legislation to repeal substantive provisions of CWBA. Review of Parliamentary debates supported conclusion that s. 74.1 only concerns exclusion of certain kinds or grades of wheat or barley from board’s compulsory price pooling system or inclusion of certain grains into monopoly. Parliament did not intend to provide producers with extensive veto power over all aspects of CWBA. Nothing in record supported conclusion that repeal of marketing monopoly or of CWBA in entirety conditional to obtaining prior consent of board or grain producers. While board’s democratic marketing practices significant and fundamental, they do not trump will of democratically elected Parliament. Save in circumstances where constitutional constraint established, legislative changes do not require consent of democratic institutions affected or of their electors. Principal purpose of proposed legislation to allow open and free market for grain producers. Purpose does not run afoul of NAFTA or other international trade agreements. Nor does right to freedom of association, found in s. 2(d) of Canadian Charter of Rights and Freedoms, protect marketing monopoly or compulsory price pooling system as contemplated by CWBA.

Friends of the Canadian Wheat Board v. Canada (Attorney General) (June 18, 2012, F.C.A., Sharlow, Trudel and Mainville JJ.A., File No. A-470-11; A-471-11) Decision at 345 D.L.R. (4th) 335, 211 A.C.W.S. (3d) 338 was reversed. 217 A.C.W.S. (3d) 261 (47 pp.).

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