CWB battle not over

BY BRUCE JOHNSTONE
The Leader Post
January 14, 2012

According to Agriculture Minister Gerry Ritz, it's all over but the crying for supporters of the Canadian Wheat Board's single desk.

"It's a done deal, folks,'' Ritz told delegates at the Western Canadian Wheat Growers convention in Moose Jaw last week, referring to the legislation to eliminate the CWB's monopoly over wheat and barley exports Aug. 1.

Then in Saskatoon this week, Ritz dismissed the threat of a class-action lawsuit by Regina lawyer Tony Merchant as "a bit of comic relief '' and reiterated that the Marketing Freedom for Grain Farmers Act "is now, and will continue to be, the law of the land.''

While Ritz sounds confident, even cocky, it has a certain whistling-past-thegraveyard feel to it.

It's almost as if by repeating the phrases "specious'' and "baseless" often enough, Ritz will make the mounting legal challenges facing his government disappear.

Unfortunately for Ritz and company, the legal challenges are real and they're not going away.

In fact, in all likelihood, they're going to multiply in the weeks and months ahead.

The first challenge is the federal court ruling Dec. 6 that says Ritz's actions in pushing through Bill C-18 in clear violation of the Canadian Wheat Board Act (which requires a producer plebiscite if major changes are made to the single desk) were an "affront to the rule of law.''

The federal government is appealing that decision to the federal court of appeal. For his part, Ritz dismissed it as a "declaration'' that has no legal effect.

If that's the case, then why is the federal government appealing the decision?

But if the government is taking the federal court ruling seriously, why is it proceeding to implement the legislation?

Shouldn't the government find out whether its actions were legal or not before implementing Bill C-18?

That's why former elected directors of the CWB are calling on the federal court to quash the Harper government's appeal of the federal court ruling.

"We believe that the Harper government should have to choose - either the government moves ahead to dismantle the CWB without a vote of farmers, or they continue with their efforts to reverse the decision at appeal - but they should not be able to do both at the same time," said Bill Toews, a former CWB director.

Another legal obstacle for the Harper government is the application by eight former directors of the CWB for a court injunction to suspend Bill C-18 until its legality is determined. That application will be heard in Manitoba Court of Queen's Bench in Winnipeg next week.

Finally, the aforementioned Merchant class action, which seeks $15.4 billion in damages for Western Canadian farmers resulting from the loss of the single desk and the assets accumulated by the CWB. This elicited a chuckle from Ritz, since Merchant is a well-known Liberal and the lone plaintiff is Duane Filson, a twicedefeated Liberal candidate for Cypress Hills-Grasslands.

Ritz can laugh all he wants, but the Merchant class action (assuming it is certified by a court) poses another thorny legal problem for the Harper government.

Assuming Bill C-18 is a legal act (a big assumption at this point), can the government confiscate the assets of the CWB, remove its monopoly, manage the business for a few years, then sell the assets to a third party, without paying a single penny in compensation to farmers?

Let's not forget the CWB is not a conventional Crown corporation. It receives no ongoing support from the federal government (or at least it didn't until the Harper government took it over) other than a federal guarantee of the initial payments to farmers. The assets have been financed by farmers, who pooled their grain and used the proceeds from the sale of their crops to finance the CWB's operations and pay themselves.

What gives this government the right to seize farmers' assets, sell them and pocket the proceeds, without paying any compensation to farmers?

And the Merchant class action promises to be the first of several such lawsuits. The Friends of Canadian Wheat Board and Canadian Wheat Board Alliance are just two of the groups considering similar legal action.

As Yogi Berra famously said: "It ain't over 'til it's over."