The Lawyers Weekly - December 23, 2011

LAWYERS SEE danger in fed’s
Bill C-26 ...................................1
CHARTER RIGHTS face off with
open trials ................................1
WHEAT BOARD moved chafes
Federal Court............................2
DISABLED VETS sue federal
government over ‘clawbacks’... 3
FEDS ‘PANDERING’: criminal
lawyers association exec ......... 4
OPINION
JEFFREY MILLER .................... 5
FOCUS
Real Property
EVICTION WITHOUT
conviction .............................. 11
NEW MORTGAGE rules include
right to prepay ...................... 12
LANDLORDS CAN’T transfer
occupier’s liability .................. 12
Criminal Law
G20 CASE will ‘embarrass,’
lawyer vows .......................... 16
CUSTODY IS often the easy
way out for youth courts ....... 17
BUSINESS & CAREERS
WORKING VACATION is no
break at all ............................ 20
SOLO PRACTICE a rewarding
‘widget factory’...................... 21
DEPARTMENTS
Careers ............... 20
Classified Ads . . . . . . . . . . 19
Lawddities............. 15
Names in the News. . . . . . . 5
Weekly Digest.......... 18
Correction

A story on page 4 of the Dec. 9, 2011 issue of The Lawyers Weekly contained an overstated figure regarding the billing to Justice Canada by Toronto litigation firm Lenczner Slaght Royce Smith Griffin LLP. The correct figure is $3 million. The newspaper regrets the editing error.

The Harper government is appealing a judge’s declaration that it committed “an affront to the rule of law” by tabling a bill to abolish the Canadian Wheat Board’s (CWB) marketing monopoly, without consulting the board or getting consent from wheat and barley growers.

On December 7, Federal Court Justice Douglas Campbell said he had “no hesitation” condemning Agriculture Minister Gerry Ritz’s failure to consult the board, or to hold a plebiscite of grain growers, before tabling Bill C- 18 (the Marketing Freedom for Grain Farmers Act) on Oct. 18.

Ritz announced plans the
same day to appeal to the Federal
Court of Appeal and to forge
ahead with Bill C- 18, notwith-
standing the judge’s declaration
that Ritz “failed to comply with
his statutory duty pursuant to
section 47.1 of the Canadian
Wheat Board Act, to consult with
the board and to hold a producer
vote, prior to causing to be intro-
duced in Parliament Bill C- 18.”
(At press time, the bill was on
track to become law before the
year’s end. The CWB was also
poised December 16 to argue an
application in the Manitoba
Court of Queen’s Bench, asking it
to rule Bill C- 18 invalid as a viola-
tion of the rule of law and to
prevent implementation of Bill
C- 18 until the court decides on
the bill’s validity. The CWB’s
chair previously wrote to the gov-
ernor general asking him not to
give the bill royal assent in light
of the Federal Court’s decision).

Steven Shrybman, of Ottawa’s Sack Goldblatt Mitchell, deplored the government’s decision to enact the bill without waiting for an appellate pronouncement on the legality of the minister’s action.

“I’ve never seen a government demonstrate such disregard for a ruling of the court,” said Shrybman, who represented the Council of Canadians and two other interveners. “One would have hoped that the government would have been somewhat chastened by this ruling, and…resiled from this determination to simply proceed while not allowing farmers

to exercise the franchise they’ve
been accorded with respect to the
future of the board.”

I’ve never seen
a government
demonstrate such
disregard for a
ruling of the court.

“
Steven Shrybman, counsel
for the Council of Canadians.
In a written statement on
December 9, Ritz said: “While
others continue to obstruct using
the courts, our government is
focused on creating a strong future
for Western Canadian farmers by
passing C- 18. The legislation intro-
duced to Parliament conforms to
the Constitution, and is within the
powers of the Canadian Parlia-
ment. As the judge noted in his
decision, the validity of Bill C- 18
was not at issue.”
Asked whether the Wheat
Board would seek an injunction to
try to prevent the passage of Bill
C- 18, its outside counsel, John
McDougall of Toronto’s Fraser
Milner Casgrain LLP, replied that
injunctive relief and orders for
mandamus are not normally
available in suits against the
Crown. However, “there’s also a
convention that’s part of the law
that the Crown would never do
anything that’s not in compliance
with the law, and if a court declares
that the law hasn’t been followed
then the Crown will change its
behaviour to comply with the law,”
he observed. “It doesn’t have to,
but that’s the convention.”
McDougall declined to specu-
late on what impact there might be
on Bill C- 18 if, after it becomes law,
a court ultimately agrees that it was
tabled in breach of the law, without
the necessary consultation or con-
sent. “We’ll have to see, won’t we?”
The Crown contends that: Jus-
tice Campbell’s “expansive” inter-
pretation of s. 47.1 of the Can-
adian Wheat Board Act ignores
the law’s “clear, unambiguous
wording;” several of his key find-
ings are “without any basis in law
or in fact;” and the judge blew
away the government’s argu-
ments without “sufficient and
adequate reasons.”
His declaration responded to
companion (but not identical)
applications from the CWB, and
Friends of the Canadian Wheat
Board. They argued that Ritz
breached his duty under s. 47.1,
which stipulates that: “The min-
ister shall not cause to be intro-
duced in Parliament a bill that
would exclude any kind, type,
class or grade of wheat or barley,
or wheat or barley produced in
any area of Canada, from the
provisions of Part IV [of the
Act]…unless (a) the minister
has consulted with the board
about the exclusion or exten-
sion; and the producers of the
grain have voted in favour of the
exclusion or extension, the vot-
ing process having been deter-
mined by the minister.”
The Crown argues “correctly
interpreted, the intended scope
and application of s. 47.1 are con-
fined to amendments that would
add or remove grains from the
mandate of the CWB under Part
III or IV of the act. There is noth-
ing in s. 47.1 indicating that this
section applies to any future bills
to repeal the act or the exclusive
marketing mandate of the CWB.”
However Justice Campbell
held that a “liberal interpretation
of the act which best ensures the
attainment of its objects” indi-
cates that “the act was intended
to require the minister to consult
and gain consent where an addi-
tion or subtraction of particular
grains or types of grain from the
marketing regime is contem-
plated, and also in respect of a
change to the democratic struc-
ture of the CWB. As the appli-
cants argue, it is unreasonable to
interpret the Act to conclude
that, while the minister must
consult and gain consent when
extracting or extending a grain,
she or he is not required to con-
sult or gain consent when dis-
mantling the CWB.”
Bill C- 18 proposes to replace
the whole marketing scheme of
wheat in Canada after a transi-
tion period. “I find that it was
Parliament’s intention in intro-
ducing s. 47.1 to stop this event
from occurring without the
required consultation and con-
sent,” the judge concluded. n