There is no hurry to decide the outcome of the Canadian Wheat Board’s lawsuit over the federal government’s gag order, a judge has ruled.
The federal court last week rejected a bid by the board to have normal rules set aside so the case can be decided quickly.
As a result, the gag order imposed on the board by Ottawa in October will remain in effect throughout the upcoming barley plebiscite, which runs until March 6.
The agency’s board of directors was to consider at a meeting this week whether to appeal the ruling.
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The board wanted the case dealt with in an expedited manner in part so that it would be free to participate in the public debate arising from the plebiscite campaign without fear of violating the government’s directive.
That directive forbids the board from spending CWB money to advocate retention of the agency’s monopoly powers.
Board officials say the directive is vague enough that employees are often uncertain whether they are in danger of violating the order.
“CWB employees do not know what they can and cannot say and are afraid that the mere communication of factual information will be viewed as a violation of the directive, which could result in them incurring personal liability,” the board told the court in its application for an expedited hearing.
However, judge Yves de Montigny rejected that and other arguments from the board, saying he could find no substantial reason to depart from normal time lines.
“There is no evidence before this court that producers will be prevented from making an informed decision if the CWB is not allowed to take a stand and campaign or even to communicate with producers and explain the advantages of the current system,” he wrote.
He also said the board is partly to blame for the tight time frame by waiting until Dec. 4 to launch its court case against the gag order.
“It is fair to say that the (board) has itself created a false sense of urgency through its own delay,” he said.
The decision to reject the request for an expedited hearing does not mean the case is derailed, only that it will be heard by the court nearer the end of March instead of in the next couple of weeks.
CWB spokesperson Maureen Fitzhenry said even though the barley plebiscite will have been completed by then, that wasn’t the only reason for the board’s legal challenge.
There are still a number of important issues surrounding the gag order that need to be addressed, including its effect on the board’s ability to conduct normal business operations, the proper role of the federal government and CWB directors in directing the activities of the CWB and Charter of Rights questions involving freedom of speech.
“Those issues are just as valid now,” she said.
The judge said in his decision that the complexity and seriousness of the issues raised require that both sides be given adequate time to prepare and argue their cases and for the court to adjudicate and rule.
The gag order is also raising concerns about the board’s local meetings traditionally held in February and March.
Would the board be violating the order if directors attending those meetings, which are paid for by the board, speak in favour of the single desk?
CWB chair Ken Ritter said since the meetings are part of the board’s normal course of doing business, they would not violate the order. However, if the agency held separate meetings to talk about the barley plebiscite, for example, that would be a violation.
As well, he said there is no question that directors are free to respond to questions and express their views.
“If someone asks me whether I support the single desk, I have to answer it in an honest way,” he said.
Director Bill Nicholson said he’s still unsure about how the order might apply to the meetings.
He said directors might have to decline to have their normal expenses paid to avoid potential problems. He’s also unclear as to whether the fact that the wheat board pays for the meeting halls and lunch will be an issue.
“It’s something we haven’t sorted out clearly yet, at least I haven’t.”
