The Canadian Wheat Board's long-shot lawsuit to keep its monopoly

The suit argues the agriculture minister doesn't have the authority to shut it down

Against the grain

Sean Kilpatrick/CP

“Pierre Trudeau said there was no place for the state in the bedrooms of the nation,” recalls Henry Vos, a grain farmer from Fairview, Alta. “So I ask, should the government be in the grain fields and the grain bins of the nation?” The private sex lives of Canadians and cultivating wheat might make for an unlikely comparison, but Vos, a former director of the Canadian Wheat Board, believes the board should start preparing to lose its grip on the export trade in Prairie wheat and barley. In late October, he quit the board in protest.

Vos is angry over a last-ditch attempt by the board to maintain its monopoly by taking the radical legal step of suing Agriculture Minister Gerry Ritz. The suit, announced Oct. 26, would thwart Bill C-18, the Harper government’s legislation to end the “single desk” monopoly. (C-18 is at the committee stage in the House of Commons.) But critics say the CWB is fighting an uphill battle against constitutional principles.

As a minority government, the Conservatives were blocked by the courts when they tried to change the wheat board’s mandate by order-in-council and without a parliamentary vote. Now the Conservatives have a majority and can presumably make whatever direct changes they want to the Canadian Wheat Board Act. But the board says, “Not so fast.” Section 47.1 of the act, added by the Liberals in 1998, says that the agriculture minister cannot alter single-desk arrangements without first consulting the board and holding a vote of grain producers.

The clause has attracted attention ever since it was passed, and its solidity is at best uncertain. A core rule of Canadian democracy is the supremacy of Parliament as the ultimate law-making power in non-constitutional matters. One accepted consequence is that past Parliaments cannot tie the hands of present or future ones. The CWB lawsuit tries to wriggle around this by targeting Ritz, rather than Parliament as a whole, and by imposing procedural restraints on him before he introduces a bill, rather than dictating what Parliament will do about it.

But it seems illogical (as Ritz has pointed out) that the Liberal government of 1998 could give wheat growers an untouchable “extra-parliamentary veto” over the behaviour of either a minister or Parliament. “The word I would use for this lawsuit is ‘ambitious,’ ” says a dubious Carissima Mathen, law professor at the University of Ottawa. “Parliamentary sovereignty is about as strong a rule as you can get.” The Federal Court was called upon to rule on 47.1 by the anti-single-desk Western Barley Growers Association in 2008; the WBGA argued that 47.1 was “invalid because it fetters the sovereignty of Parliament.” The court demurred, but Justice Karen Sharlow commented in passing that 47.1 “does not stop Parliament from enacting any legislation it sees fit to enact.”

It’s unlikely, then, that the CWB can stop Parliament from liberalizing Canadian agriculture. Vos and another Alberta director who resigned said the board consulted external lawyers who declared the lawsuit an extreme long shot. After all, if the Federal Court did allow the Liberals of 1998 to get away with delegating Parliament’s authority to an outside group with vested interests, it would put in the hands of today’s Conservatives an all-new method for majority governments to make legislation practically irrevocable.

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