A Federal Court of Canada judge promised Dec. 20 that she will try to decide by Dec. 23 whether to grant an injunction against counting the ballots and declaring winners in four contested Canadian Wheat Board electoral districts.
The board says nothing less than the legitimacy of the CWB at a time of crucial decision-making is at stake.
Wheat board lawyer Jonathon Kroft pleaded during a Federal Court hearing in Ottawa for a fast decision so that voting can take place Dec. 29. The hearing was looking into a request from District 8 candidate Art Mainil to declare the election invalid and to order new elections.
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A decision to refuse an injunction would allow new directors to take their places Jan. 1, 2005. Without a decision and a rejection of the allegation of election irregularities, Kroft said the CWB board “will be serving under a cloud.”
Retorted Mainil lawyer Stephen Orlowski, who appeared from Weyburn, Sask., by teleconference:
“We agree there will be a cloud but we submit this is a cloud created by the wheat board and not by us.”
After hearing four hours of argument, judge Anne MacTavish said she would try to act quickly.
“I will try to have a judgment by Dec. 23,” she told lawyers.
CWB communications consultant Maureen Fitzhenry said that date would work for the board, assuming it wins the case.
“Obviously we would have preferred that the issue be decided today,” she said after the Ottawa hearing.
“But as long as there is a decision in a reasonable timeframe, it will allow us to conclude this election.”
David Swayze, lawyer for the election co-ordinator firm Meyers Norris Penny of Brandon, said scrutineers from across the Prairies could be assembled and the votes counted Dec. 29.
While much of the legal debate focused on points of law about what constitutes “substantial irregularities” and “irreparable harm,” at the core of the case are allegations from some anti-monopoly candidates that wheat board errors in compiling the voters list and an election advertisement run by the co-ordinator disenfranchised many farmers and tended to help candidates who support the monopoly.
The wheat board readily admitted there had been problems.
It was discovered late in the campaign that as many as 800 farmer permit book holders who had not delivered board grain for two years had been left off the list. Ballots were rushed to them.
In addition, some producers were given voter cards for the wrong districts.
Mainil, supported by District 4 candidate Tom Jackson, insisted these were serious enough gaffes to warrant an overthrow of the current election in the four contested districts and force a rerun of the election.
In an affidavit filed with the court, the Weyburn area farmer said an election ad run by the election co-ordinator called on voters to support the most “experienced” candidates. While MNP officials said it was a misinterpretation, Mainil said this amounted to a plea that producers vote for incumbents, “all of whom are supporters of the marketing monopoly.”
The wheat board said the fact that the errors were caught and attempts made to rectify them shows the system works. In its brief to the court, the board noted that in a Nov. 11 Western Producer profile, Mainil was already challenging the vote before the evidence was available, calling the elections “a joke and the results can’t be trusted.”
In an affidavit to the court, CWB corporate secretary Deborah Harri said a delay in counting ballots and installing new directors would hurt the board at a time when it has key consultation and planning sessions in early 2005.
Among the issues facing the new board, said Kroft, are how to deal with international trade demands that the CWB begin getting rid of its federal government financial support.
Re-elections in four districts would leave the board with six elected members, five government-appointed members and four vacancies, throwing the legitimacy of board decisions into doubt.
