Federal gov’t hit with new lawsuit

Farmers who support single desk grain marketing in Western Canada have launched another court action against the federal government.

Friends of the Canadian Wheat Board announced last week that a lawsuit has been launched to restore a farmer-controlled wheat board and recover financial damages, potentially worth $17 billion.

“Our goals in this action are twofold,” said Steven Shrybman, a lawyer with Sack Goldblatt Mitchell, the Ontario law firm that will handle the case.

“Our primary objective is to restore democratic farmer control of the wheat board and the right of producers to collectively market their grain. We are also seeking compensation from the government for damages it has caused to the interests of producers.”

Winnipeg lawyer Anders Bruun, who will act as co-counsel, said the lawsuit will involve constitutional arguments aimed at restoring the board as well as a class action component.

The lawsuit will seek damages of $3.75 to $17 billion, regardless of whether the case succeeds in re-instating a farmer-controlled wheat board.

“In the event that it becomes totally impossible or totally impractical to reconstitute a Canadian Wheat Board, then we will be seeking compensation for the loss of the CWB,” Bruun said.

“If the wheat board is restored, then we’re claiming $3.75 billion for the loss of opportunity, the expense and the cost of business interruption to the farmers from Aug. 1 of 2012 to whatever time it takes to get (the CWB) reinstated. Regardless of the outcome, all farmers potentially have an interest in this litigation.”

Neither Bruun nor Shrybman offered a time line on when the case would be argued, but a certification hearing is expected to take place within the next three to six months.

If approved, the case will be heard at the Federal Court level.

Plaintiffs named in the suit include grain farmers Harold Bell of British Columbia, Andrew Dennis of Manitoba, Nathan Macklin of Alberta and Ian McCreary of Saskatchewan.

The latest court action comes just weeks after Regina lawyer Tony Merchant initiated similar class actions on behalf of affected farmers in Saskatchewan and Alberta.

Merchant’s cases have yet to be certified by the courts and dates for certification hearings have yet to be determined.

However, Merchant said last week it is reasonable to assume certification hearings will occur in the next four or five months.

Bruun said the outcomes of other legal actions, including Merchant’s, should have little or no influence on the outcome of the Bruun-Shrybman action.

The courts could suggest legal teams combine their efforts to save legal costs and court time if multiple class actions are launched.

It is also possible lawyers involved in the two cases could voluntarily decide to combine cases.

However, Merchant suggested last week that the Bruun-Shrybman action, which will attempt to reinstate the CWB, may not be a perfect match for a suit that is seeking monetary damages and nothing more.

As of last week, neither Bruun nor Shrybman had spoken with Merchant about the possibility of collaborating.

At least two other CWB-related cases are also awaiting resolution:

Manitoba Court of Queen’s Bench judge Shane Perlmutter is expected to rule on whether federal legislation aimed at ending the wheat board’s marketing monopoly should be suspended. That case was heard in mid-January.

A hearing date is also pending on an appeal launched by the federal government. Ottawa is seeking to overturn an earlier Federal Court ruling that suggested the federal government acted illegally when it altered existing CWB legislation.

In mid-December, Ottawa passed Bill C-18, which will end the CWB’s marketing monopoly over wheat and barley Aug.1.

Since then, farmer-elected directors have been removed from the CWB board and private-sector grain companies have been offering contracts to prairie farmers for the delivery of wheat and barley after Aug.1.

Legal uncertainties surrounding the legislation have some players in the Canadian grain industry wondering whether delivery contracts signed since mid-December will be executed or whether subsequent court rulings will render them invalid.

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