The Canadian Wheat Board shouldn’t be expected to follow federal government policy directives that are inconsistent with the CWB Act.
That’s one of the key arguments put forward in the board’s application to Federal Court of Canada asking it to strike down the government’s Oct. 5 gag order on the board.
Single desk marketing is the law of the land, and the board’s responsibility is to act in accordance with that law.
Yet the board is being directed by the federal government not to question or undermine Ottawa’s plan to eliminate the single desk, “notwithstanding the fact that the CWB Act enshrines the single desk as the law of Canada and the government is unable to pass legislation to change it,” says the application.
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Board officials also told the court that the agency has no duty to follow the government directive, since Ottawa does not legally control the CWB.
While links exist between the federal government and the CWB, the board is a “shared governance entity” and therefore not under the control of the government, said the board’s chief executive officer Adrian Measner in a 39 page affidavit filed with the court Dec. 4.
The board’s legal duty is to act in the best interest of farmers, he said, and in line with its existing statutory mandate (i.e. the single desk) and its official vision and mission as determined by its board of directors.
“The CWB is not simply the vehicle through which federal government policy, as it might be defined from time to time, is implemented, unless such policy is consistent with the act or the act itself is amended by Parliament to conform with government policy.”
Section 18 (1) of the act does give the federal cabinet authority to direct the board as to the manner in which it operates.
But Measner said that provision has been used only 21 times in 71 years, and more importantly, has never been used over the objections of the CWB.
In a separate affidavit, CWB chair Ken Ritter said the government has shown, through the issuance of the gag order and other actions, a “fundamental misunderstanding” of the legal relationship between the government and the CWB.
“The federal government does not control the CWB; rather, since 1998 the board (of directors) has had overall responsibility for the management of the CWB,” said Ritter.
The CWB’s application to the court asks that it declare the Oct. 5 order-in-council that directed the board not to spend funds in any way to advocate retention of the agency’s monopoly powers to be unlawful and beyond the jurisdiction of the federal government.
It also asked for a ruling that the order violates the Charter of Rights and Freedoms and is vague and unenforceable.
Measner said in his affidavit the gag order has had a “chilling effect” on board employees.
“It is clear the directive has made CWB staff fearful of communicating in an open manner with producers and the public,” he said.
The federal government has until Dec. 14 to file its response to the CWB’s request for a judicial review of the Oct. 5 order-in-council.
