The Alberta Barley Commission and individual producers have lost their constitutional appeal against the monopoly powers of the Canadian Wheat Board.
The federal court of appeal has decided against overturning the 1997 court decision that ruled the wheat board did not contravene the Canadian constitution.
The commission has yet to decide its next move, said chair Ken Sackett, which would mean asking the Supreme Court to hear the case.
“If we had won our case it would have been a major upset for all of Canada,” he said.
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The federal court may have written its decision in anticipation of the case going to the Supreme Court, where a final constitutional ruling would be made, said Keith Groves, a member of the farmers’ legal team.
“There has never been a case quite like this dealing with an act like the Canadian Wheat Board Act,” he said.
The farmers argued that imposing a grain buying monopoly on prairie farmers violated their right of freedom of association, right to pursue a livelihood and the right to equality.
If the case does go to the highest court, they would have to argue whether the wheat board act is a law of general application meaning it is a law that applies equally to all Canadians.
The plaintiffs have always contended it does not, said Groves.
The judges said that it is not a law of application generally, but it is a law within the provinces it covers.
Groves said the argument before the Supreme Court would be that these kinds of laws should apply to everyone rather than those in the current wheat board jurisdiction. The act encompasses Manitoba, Saskatchewan, Alberta and parts of British Columbia. Therefore it does not apply equally to all farmers in B.C.
Another argument is that the original purpose of the wheat board has shifted. There is no longer a need to deal with fixed prices in the international market and ensure compulsory pooling so that wheat is available for markets, as there was for the United Kingdom during the war.
After seven years of legal wrangling, the Alberta Barley Commission said support to continue the case has been firm among farmers. The commission is funded by a levy of 40 cents per tonne on all barley sold. Refunds did not go up dramatically as the commission spent time and money in the courts, said Sackett.
