Canada (Attorney General) v. Friends of the Canadian Wheat Board

Canada (Attorney General) v. Friends of the Canadian Wheat Board
Court (s) Database
Federal Court of Appeal Decisions
Date
2012-06-18
Neutral citation
2012 FCA 183
File numbers
A-470-11
Notes
Reported Decision
Decision Content
Federal Court of Appeal
Cour d'appel fédérale
Date: 20120618
Docket: A-470-11
A-471-11
Citation: 2012 FCA 183
CORAM: SHARLOW J.A.
TRUDEL J.A.
MAINVILLE J.A.
Docket: A-470-11
BETWEEN:
ATTORNEY GENERAL OF CANADA, THE MINISTER OF
AGRICULTURE AND AGRIFOOD IN HIS CAPACITY AS
MINISTER RESPONSIBLE FOR THE CANADIAN WHEAT BOARD
Appellants
and
FRIENDS OF THE CANADIAN WHEAT BOARD, HAROLD
BELL, DANIEL GAUTHIER, KEN ESHPETER, TERRY BOEHM,
LYLE SIMONSON, LYNN JACOBSON, ROBERT HORNE, WILF
HARDER, LAURENCE NICHOLSON, LARRY BOHDANOVICH,
KEITH RYAN, ANDY BAKER, NORBERT VAN DEYNZE, WILLIAM
ACHESON, LUC LABOSSIERE, WILLIAM NICHOLSON, RENE SAQUET, and
THE CANADIAN WHEAT BOARD
Respondents
and
COUNCIL OF CANADIANS, ETC GROUP (ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA
Interveners
Docket: A-471-11
BETWEEN:
MINISTER OF AGRICULTURE AND AGRI-FOOD IN HIS CAPACITY AS
MINISTER RESPONSIBLE FOR THE CANADIAN WHEAT BOARD
Appellant
and
THE CANADIAN WHEAT BOARD
ALLEN OBERG, ROD FLAMAN, CAM GOFF, KYLE KORNEYCHUK,
JOHN SANDBORN, BILL TOEWS, STEWART WELLS and BILL WOODS
Respondents
and
COUNCIL OF CANADIANS, ETC GROUP (ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA
Interveners
Heard at Ottawa, Ontario, on May 23, 2012.
Judgment delivered at Ottawa, Ontario, on June 18, 2012.
REASONS FOR JUDGMENT BY: MAINVILLE J.A.
CONCURRED IN BY: SHARLOW J.A.
TRUDEL J.A.
Federal Court of Appeal
Cour d'appel fédérale
Date: 20120618
Docket: A-470-11
Citation: 2012 FCA 183
CORAM: SHARLOW J.A.
TRUDEL J.A.
MAINVILLE J.A.
Docket: A-470-11
BETWEEN:
ATTORNEY GENERALOF CANADA, THE MINISTER OF
AGRICULTURE AND AGRIFOOD IN HIS CAPACITY AS
MINISTER RESPONSIBLE FOR THE CANADIAN WHEAT BOARD
Appellants
and
FRIENDS OF THE CANADIAN WHEAT BOARD, HAROLD
BELL, DANIEL GAUTHIER, KEN ESHPETER, TERRY BOEHM,
LYLE SIMONSON, LYNN JACOBSON, ROBERT HORNE, WILF
HARDER, LAURENCE NICHOLSON, LARRY BOHDANOVICH,
KEITH RYAN, ANDY BAKER, NORBERT VAN DEYNZE, WILLIAM
ACHESON, LUC LABOSSIERE, WILLIAM NICHOLSON, RENE SAQUET, and
THE CANADIAN WHEAT BOARD
Respondents
and
COUNCIL OF CANADIANS, ETC GROUP (ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA
Interveners
Docket: A-471-11
BETWEEN:
MINISTER OF AGRICULTURE AND AGRI-FOOD IN HIS CAPACITY AS
MINISTER RESPONSIBLE FOR THE CANADIAN WHEAT BOARD
Appellant
and
THE CANADIAN WHEAT BOARD
ALLEN OBERG, ROD FLAMAN, CAM GOFF, KYLE KORNEYCHUK,
JOHN SANDBORN, BILL TOEWS, STEWART WELLS and BILL WOODS
Respondents
and
COUNCIL OF CANADIANS, ETC GROUP (ACTION GROUP ON EROSION, TECHNOLOGY AND CONCENTRATION), PUBLIC SERVICE ALLIANCE OF CANADA and FOOD SECURE CANADA
Interveners
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1] These appeals concern the orders of Campbell J. of the Federal Court (“Federal Court judge”) dated December 7, 2011 declaring, for the reasons cited as 2011 FC 1432 (“Reasons”), that the Minister of Agriculture and Agri-Food (“Minister”) failed to comply with his statutory duty pursuant to section 47.1 of the Canadian Wheat Board Act, R.S.C. 1985, c. C-24 (“CWB Act”), to consult with the Canadian Wheat Board (“CWB”) and to obtain the consent of wheat and barley producers by means of a vote prior to introducing Bill C-18 in Parliament, which resulted in the adoption of the Marketing Freedom for Grain Farmers Act, S.C. 2011, c. 25.
[2] These appeals were consolidated and expedited by orders of the Chief Justice dated respectively February 14 and 17, 2012. The CWB did not participate in these appeals. The interveners were granted leave to intervene on two issues by order of this Court dated April 16, 2012. Motions to quash or, alternatively, to stay these appeals were dismissed from the bench prior to the hearing of the appeals on May 23, 2012. These reasons for judgment concern both appeals, and a copy of thereof shall be placed in each Court file as reasons therein.
[3] These appeals form part of a series of legal proceedings challenging the Marketing Freedom for Grain Farmers Act.
[4] The first proceedings were initiated by the Friends of the Canadian Wheat Board and a number of individual wheat and barley producers who made an application for judicial review in the Federal Court in June 2011 under Federal Court file T-1057-11. The CWB and some of its directors also made a separate application for judicial review in October 2011 under Federal Court file T-1735-11. Although the drafting was slightly different in each application, the judicial declarations sought by all applicants were essentially the same:
a. a declaration that the Minister failed to comply with his statutory duty pursuant to section 47.1 of the CWB Act to consult with the CWB and to obtain the consent of wheat and barley producers by means of a vote held prior to causing to be introduced into Parliament Bill C-18; and
b. a declaration that the Minister acted in breach of the legitimate expectations of the CWB and of wheat and barley producers, and contrary to the duty of procedural fairness, in causing to be introduced into Parliament this Bill without first consulting with the CWB and holding a vote among wheat and barley producers.
These judicial review applications were heard and decided together by the Federal Court judge, and the orders issued as a result are now the object of this appeal.
[5] Relying on the declarations of the Federal Court judge issued following these two judicial review applications, some former directors of the CWB filed a statement of claim in the Court of Queen’s Bench of Manitoba seeking declarations that the Marketing Freedom for Grain Farmers Act is invalid and infringes the rule of law, the Constitution Act, 1867, and the Constitution Act, 1982 on the ground that this new legislation results from illegal actions of the Minister.
[6] An interlocutory order was also sought within the framework of the Manitoba proceedings for the purpose of staying or suspending nunc pro tunc the operation and implementation of the Marketing Freedom for Grain Farmers Act as at the date and time of Royal Assent, pending a decision as to the validity of that legislation. Perlmutter J. refused to grant such an order for reasons dated February 24, 2012 and cited as Oberg et al. v. Canada (Attorney General), 2012 MBQB 64. An appeal from that judgment to the Court of Appeal of Manitoba is pending.
[7] Also relying on the declarations of the Federal Court judge, in February 2012 a proposed class proceeding on behalf of grain producers who sold grain through the CWB was filed with the Federal Court (T-356-12) seeking (a) an order staying or suspending nunc pro tunc the operation and implementation of the Marketing Freedom for Grain Farmers Act as of the date and time of Royal Assent; (b) a declaration that the Minister’s actions in failing to consult and hold a vote of grain producers prior to introducing that legislation in Parliament infringed paragraphs 2(b) (freedom of thought, belief, opinion and expression) and 2(d) (freedom of association) of the Canadian Charter of Rights and Freedoms (“Charter”); and (c) substantial damages against the federal Crown. These proceedings are also pending.
[8] It is thus in these highly litigious circumstances that this appeal must be decided.
The context of these proceedings
[9] The marketing of western Canadian wheat grain has had a long and tumultuous history characterized by deep tensions between proponents of open markets, of voluntary collective marketing pools, and of the CWB acting as compulsory marketing agency. For a detailed account of that history, reference may be made to F. Wilson, A Century of Canadian Grain, Government Policy to 1951 (Western Producer Prairie Books, Saskatoon, 1978); Vernon C. Fowke, The National Policy and the Wheat Economy (University of Toronto Press, Toronto, 1957); Vernon C. Fowke, Canadian Agricultural Policy, The Historical Pattern (University of Toronto Press, 1946, reprinted 1978).
[10] The CWB was established by Parliament in 1935 by the Act to provide for the Constitution and Powers of the Canadian Wheat Board, 25-26 George V, c. 53. The powers and mandate of the CWB have considerably evolved since that time through numerous legislative amendments, regulations and Orders in Council.
[11] The CWB’s operations today concern principally wheat and barley produced in a “designated area” defined under subsection 2(1) of the CWB Act as comprising Manitoba, Saskatchewan and Alberta and that part of the Province of British Columbia known as the Peace River District.
[12] For most of its history, the operations of the CWB have been governed by four fundamental principles:
a. grain marketing monopoly: subject to certain regulatory exceptions, such as animal feed grain, Part IV of the CWB Act prohibits all persons other than the CWB from engaging in the sale of wheat and other designated grains that are destined for export from Canada or for consumption in Canada;
b. compulsory price pooling: grain farmers deliver their grain crop to the Board through “pools” contemplated by Part III of the CWB Act; under the pooling system, each producer receives an interim payment (based on estimated market returns) for the same grain delivered regardless of the time of delivery, and is entitled to receive a final payment for this grain based on the actual prices obtained throughout the pooling year by the CWB, net of deductions for related expenses;
c. federal government financial guarantees: including (i) guarantees against CWB losses from operations under Part III of the CWB Act in relation to any pool period, and from other operations during a crop year (subsection 7(3) of the CWB Act); and (ii) loan guarantees (subsection 19(5) of the CWB Act); and
d. federal government control: since it was first established, and until 1998, the CWB was under the control of commissioners appointed by the Governor in Council; it acted as an agency of the Crown and was bound by the directions given to it by the federal cabinet.
[13] The combined effect of the CWB’s grain marketing monopoly and of the compulsory price pooling system is referred to, colloquially and in these reasons, as the “Single Desk”.
[14] In 1998, Parliament devolved partial control of the CWB to grain producers pursuant to the Act to amend the Canadian Wheat Board Act and to make consequential amendments to other Acts, S. C. 1998, c. 17 (“1998 Amendments”). The board of directors of the CWB was then expanded to include four directors and a president appointed by the Governor in Council, and ten other directors elected by producers on the basis of geographical representation: sections 3.01, 3.02, 3.06 and 3.07 of the CWB Act as incorporated into that act by section 3 of the 1998 Amendments. The CWB then ceased to be an agent of the Crown and was declared not to be a Crown corporation: subsection 4(2) of the CWB Act as replaced by section 4 of the 1998 Amendments. The CWB remained subject to the directions given to it by the federal cabinet, but the directors were not accountable for any consequences arising from the implementation of such directions: section 18 of the CWB Act as amended by section 10 of the 1998 Amendments.
[15] Subsection 24(1) and section 25 of the 1998 Amendments also replaced the prior provisions of the CWB Act concerning the exclusion of certain kinds and grades of wheat and barley from the grain marketing monopoly. They were replaced by a new provision, section 47.1 of the CWB Act, requiring consultations with the CWB and a favourable vote by producers before any bill proposing such an exclusion can be introduced in Parliament. That provision is at the heart of the present appeal, and is fully reviewed below.
[16] The controversy among western Canadian grain producers over the mandate and powers of the CWB has intensified in the past few years. Many producers have been seeking an option to sell their wheat and barley grains on the open market. This change has been strongly opposed by the proponents of the Single Desk, including many of the directors of the CWB and several grain producers. The situation was such that in 2006 the Governor in Council directed the CWB not to expend funds on advocating the retention of its monopoly powers: SOR/2006-247 (considered by this Court in Canada (Canadian Wheat Board) v. Canada (Attorney General), 2009 FCA 214, [2010] 3 F.C.R. 374).
[17] The current federal government also favours an open market for grains. Shortly after the last general elections for Parliament held on May 2, 2011, the Minister publicly announced that the re-elected government would move ahead swiftly to allow western grain producers to market their grain freely. In the Speech from the Throne to Parliament on June 3, 2011, the government formally announced that legislation would be introduced during the Parliamentary session in order “to ensure that western farmers have the freedom to sell wheat and barley on the open market.” (Appeal Book, at p. 516).
[18] Many grain producers, including some directors of the CWB, opposed the planned legislation and publicly made known their disagreement. Although financial and economic considerations are at the heart of this disagreement, the proponents of the Single Desk quickly focussed on the issue of consultation and consent. On the basis of their reading of section 47.1 of the CWB Act, they held that the Minister could not submit the proposed legislation to Parliament without the prior consent of grain producers obtained through a vote. The Minister held that he was not legally bound to hold such a vote and that he would not subject the contemplated legislation to such a plebiscite.
[19] A producer vote was nevertheless organized during the summer of 2011 under the auspices of the CWB, which seems to have then been under the control of directors opposed to the new legislation. The methods used for the organization of the plebiscite were criticised, and the legitimacy and fairness of the vote were questioned by those supporting the government initiative. The results of the vote were announced on September 12, 2011. Participation in the vote was 56%, and, of those who voted, 62% of wheat producers and 51% of barley producers opted to maintain the Single Desk, while 38% of wheat producers and 49% of barley producers opted for an open market system. The Minister declined to recognize the plebiscite as binding.
[20] On October 18, 2011, the Minister introduced into Parliament Bill C-18, which resulted in the eventual adoption of the Marketing Freedom for Grain Farmers Act. The Bill was debated in the House of Commons and in the Senate, and was eventually adopted by both chambers. It received Royal Assent on December 15, 2011.
The Marketing Freedom for Grain Farmers Act
[21] The Marketing Freedom for Grain Farmers Act substantially modifies the legislative environment for the marketing of western wheat and barley, but it does so in three distinct phases.
[22] During the first phase, which runs from the date of Royal Assent (October 18, 2011) to August 1, 2012, the Single Desk and most of the provisions of the CWB Act are maintained, subject to the following changes:
a. producers are able to forward contract wheat and barley sales for delivery after August 1, 2012: section 11 of the Marketing Freedom for Grain Farmers Act adding subsection 42(2) to the CWB Act; and
b. the control of the CWB is vested in a new board consisting of five directors appointed by the Governor in Council: sections 2 to 6, 10 and 12 of the Marketing Freedom for Grain Farmers Act.
[23] The second phase will comprise the five-year period from August 1, 2012 to August 1, 2017. On August 1, 2012, the CWB Act will be repealed: sections 39 and 40 of the Marketing Freedom for Grain Farmers Act. In its stead, the Canadian Wheat Board (Interim Operations) Act will come into force: sections 14 and 40 of the Marketing Freedom for Grain Farmers Act and SI/2011-120. The Canadian Wheat Board (Interim Operations) Act is temporary legislation which will be in full force and effect for a period of at most five years: sections 42, 45, 46, 55, 56 and 64 of the Marketing Freedom for Grain Farmers Act.
[24] During the five years of the second phase, the CWB will be continued under the governance of five directors appointed by the Governor in Council, thus returning the CWB to full government control: sections 8, 9, 13 and 25 of the Canadian Wheat Board (Interim Operations) Act. The CWB’s operations will also be substantially modified. It will continue to benefit from government guarantees during the interim period: subsections 19(3), 26(5) and 26(6) of the Canadian Wheat Board (Interim Operations) Act; and it will still use price pooling, although these pools will no longer be compulsory for producers: sections 28, 29 and 33 of the Canadian Wheat Board (Interim Operations) Act. Moreover, the CWB’s export and interprovincial trade monopoly will no longer exist. Consequently, wheat and barley producers will be able to sell and deliver their grains to any domestic or export buyer under a free-market principle. As a result, although the CWB will continue, it will be operating in a market environment and as a voluntary pooling marketing agency for producers who wish to continue marketing their products through it.
[25] The third phase is the period after August 1, 2017. By that date, the CWB will either be continued as a privatized corporation or dissolved. The CWB will have to submit to the Minister before August 1, 2016 an application for continuance under either of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, the Canada Cooperatives Act, S.C. 1998, c. 1, or the Canada Not-for-profit Corporations Act, S.C. 2009, c. 23. This application will presumably be accompanied by a new commercialization and marketing plan for its future operations. If the application is approved by the Minister, the CWB may be continued under one of these acts as a privatized entity. Failing such approval and continuation, the CWB shall be wound-up and dissolved: sections 42 and 45 to 55 of the Marketing Freedom for Grain Farmers Act.
The fundamental issue
[26] The fundamental issue raised by these proceedings is whether the Minister was legally bound by section 47.1 of the CWB Act to consult with the CWB and to obtain the favourable consent of wheat and barley grain producers through a vote prior to introducing in Parliament Bill C-18, the Marketing Freedom for Grain Farmers Act. There is no dispute that correctness is the standard of review upon which this issue must be decided.
[27] Section 47.1 of the CWB Act reads as follows:
47.1 The Minister shall not cause to be introduced 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 in Canada, from the provisions of Part IV, either in whole or in part, or generally, or for any period, or that would extend the application of Part III or Part IV or both Parts III and IV to any other grain, unless
(a) the Minister has consulted with the board about the exclusion or extension; and
(b) the producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister.
47.1 Il ne peut être déposé au Parlement, à l’initiative du ministre, aucun projet de loi ayant pour effet, soit de soustraire quelque type, catégorie ou grade de blé ou d’orge, ou le blé ou l’orge produit dans telle région du Canada, à l’application de la partie IV, que ce soit totalement ou partiellement, de façon générale ou pour une période déterminée, soit d’étendre l’application des parties III et IV, ou de l’une d’elles, à un autre grain, à moins que les conditions suivantes soient réunies :
a) il a consulté le conseil au sujet de la mesure;
b) les producteurs de ce grain ont voté — suivant les modalités fixées par le ministre — en faveur de la mesure.
[28] The appellants submit that section 47.1 applies only to situations where specified grains are to be included or excluded from Parts III or IV, but does not apply to legislative initiatives repealing the Single Desk or the CWB Act in its entirety, as effectuated through the Marketing Freedom for Grain Farmers Act. The appellants add that, in any event, section 47.1 is not a proper “manner and form” provision which imposes procedural requirements on Parliament’s ability to adopt legislation, and it is thus unenforceable through the courts because of the doctrine of parliamentary sovereignty as reflected in subsection 2(2) of the Federal Courts Act, R.S.C. 1985, c. F-7.
[29] On the other hand, the respondents, supported by the interveners, submit that this provision – introduced into the CWB Act pursuant to the 1998 legislative reforms – applies to all legislation which would result directly or indirectly in the exclusion of wheat or barley from the Single Desk, including legislative initiatives, such as the Marketing Freedom for Grain Farmers Act, which end the Single Desk or which repeal in its entirety the CWB Act.
[30] I note that, as an alternative argument, the respondents also submitted before the Federal Court that the Minister was bound by the doctrine of legitimate expectations to consult with the CWB and grain producers prior to introducing the Marketing Freedom for Grain Farmers Act. The Federal Court judge did not grant any relief on this basis, and the respondents have not argued this point in this appeal. Although the appellants have asked this Court to address the issue of legitimate expectations, the respondents advised us through their counsel during the oral hearing of this appeal that they no longer advance any arguments based on legitimate expectations. I have serious reservations concerning the applicability of the doctrine of legitimate expectations to Parliamentary processes in view of the comments of Sopinka J. speaking for the Supreme Court of Canada in Reference Re Canada Assistance Plan (B.C), [1991] 2 S.C.R. 525 at pp. 558 to 560. However, since this issue is not being pursued by the respondents, it need not be considered.
The reasons of the Federal Court judge
[31] The Federal Court judge declined to consider the Minister’s argument that section 47.1 of the CWB Act did not meet the requirements of a “manner and form” provision. He was of the view that he could not decide that issue in the absence of a notice of a constitutional question challenging the constitutional validity, applicability or operability of section 47.1. Hence, he decided the judicial review applications before him on the assumption that section 47.1 was a valid “manner and form” provision: Reasons at paras. 9 and 10.
[32] The Federal Court judge seems to have implicitly recognized that, read literally, the language of section 47.1 simply contemplates situations involving the addition or subtraction of certain kinds or grades of grains from certain aspects of the CWB marketing regime. However, relying “upon a contextual historical approach with respect to the unique democratic nature of the CWB, and its importance”(Reasons at para. 27), and by “giv[ing] weight to the Council’s argument that s. 47.1 applies to changing the structure of the CWB because the democratic structure is important to Canada’s international trade obligations under NAFTA” (Reasons at para. 28), the Federal Court judge concluded as follows:
[30] By construing the liberal interpretation of the [Canadian Wheat Board] Act which best ensures the attainment of its objects, I find that the Act was intended to require the Minister to consult and gain consent where an addition or subtraction of particular grains or types of grain from the marketing regime is contemplated, and also in respect of a change to the democratic structure of the CWB. As the Applicants 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 consult or gain consent when dismantling the CWB; the point is made as follows:
… Under the Minister’s interpretation of section 47.1, farmers would be denied a vote “when it is most needed”, namely, in circumstances where the CWB’s exclusive marketing mandate is to be eliminated. That interpretation is not only inconsistent with the principle that the words of a statute must be placed in context, but is contrary to common sense.
(Applicants’ Memorandum of Fact and Law in T-1735-11, para. 52)
[Emphasis added.]
[31] Section 39 of Bill C-18 proposes to replace the whole marketing scheme of wheat in Canada by repealing the Act after a transition period. I find that it was Parliament’s intention in introducing s. 47.1 to stop this event from occurring without the required consultation and consent.
[Emphasis in original]
Analysis
[33] On the basis of a plain reading of the CWB Act, Perlmutter J. of the Court of Queen’s Bench of Manitoba held that section 47.1 only refers to the addition or subtraction of particular grains from Parts III or IV of that act, and thus does not require the Minister to consult with the CWB or to hold a vote among grain producers prior to introducing in Parliament legislation which fundamentally changes the governance structure or mandate of the CWB, or which repeals the CWB Act as a whole: Oberg et al. v. Canada (Attorney General), above at para. 15. The issue before this Court is whether we should go beyond this plain reading of the provision and accept the expanded meaning given to it by the Federal Court judge so as to ensure to wheat and barley producers control over all fundamental legislative changes to the CWB Act.
[34] The Federal Court judge, adopting for this purpose the arguments of the respondents, was of the opinion that such an expansive meaning should be given to section 47.1 in view of (a) its legislative history; (b) the comments of the previous Minister in Parliament when the 1998 Amendments were being considered; (c) the need to promote the democratic control of grain producers over the CWB; and (d) the importance of the CWB’s democratic structure to Canada’s international trade obligations under NAFTA. The interveners add in this appeal a fifth consideration, namely (e) the promotion of the ability of grain producers to act collectively in the marketing of grain taking into account their freedom of association guaranteed by paragraph 2(d) of the Charter.
[35] After carefully considering the legislative history and the context in which section 47.1 was adopted, I am of the view that none of the arguments advanced by the respondents or the interveners can sustain an interpretation that would preclude the Minister from introducing in Parliament legislation which would fundamentally modify the CWB’s mandate or which would lead to the repeal of the CWB Act. I reach this conclusion by applying the modern approach to statutory interpretation, and after considering and discarding the arguments advanced in favour of an expansive interpretation of section 47.1.
The modern approach to statutory interpretation
[36] The modern approach to statutory interpretation has been expressed as follows by Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21:
Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.
[37] McLachlin C.J. and Major J. reiterated this approach in Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601, 2005 SCC 54, at paragraph 10:
It has been long established as a matter of statutory interpretation that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words plays a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole.
[38] Thus, under the modern contextual approach to statutory interpretation, the grammatical and ordinary sense of a provision is not necessarily determinative of its meaning. Regard must be had not only to the ordinary and natural meaning of the words, but also to the context in which they are used and the purpose of the provision considered as a whole within the legislative scheme in which it is found: Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 at para. 27. The most significant element of this analysis is the determination of legislative intent: R. v. Monney, [1999] 1 S.C.R. 652 at para. 26.
[39] The concept of legislative intent was explained as follows by this Court in Felipa v. Canada (Citizenship and Immigration), 2011 FCA 272, [2012] 1 F.C.R. 3 at para. 31, citing approvingly for this purpose Lord Nicholls in Regina v. Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd., [2001] 2 A.C. 349 (H.L.) at page 396:
Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A G [1975] AC 591, 613: “We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.”
[Emphasis added.]
[40] In ascertaining legislative intent, a court must consider the total context of the provision to be interpreted, no matter how plain the provision may seem when it is initially read in isolation. However, it must be kept in mind that a line exists between judicial interpretation and legislative drafting, and that this line is not to be crossed: Felipa v. Canada (Citizenship and Immigration), above at para. 32, referring to ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4 at para. 51.
Legislative History
[41] The respondents propose an analysis of the legislative history of section 47.1 of the CWB Act which starts and ends with the legislative reform of 1998. However, a review of the provisions which section 47.1 replaced sheds considerable light on the scope of this section.
[42] The Act to amend The Canadian Wheat Board Act, 1935, 11 Geo. VI, c. 15, s. 5, assented to on May 14, 1947 (the “1947 Act”), incorporated Part IV into the CWB Act concerning the “Regulation of Interprovincial and Export Trade in Wheat”. Under this Part IV, Parliament entrusted the CWB with an exclusive marketing monopoly over international and interprovincial trade in wheat. In 1994, the CWB monopoly over international trade in wheat was reduced to a monopoly over wheat exports from Canada in order to comply with and implement the Uruguay Round of Multinational Trade Negotiations concluded under the auspices of the World Trade Organization: World Trade Organization Agreement Implementation Act, S.C. 1994, c. 47, s. 48.
[43] Since its inception, this marketing monopoly has, however, been subject to regulatory exclusions of designated kinds and grades of wheat, or of wheat produced in certain parts of Canada. Such regulatory exclusions were first set out in paragraph 28(b) of CWB Act introduced into the act by the 1947 Act (and slightly amended in 1950 by 14 Geo. VI, c. 31, s. 6). This regulatory authority to exclude designated kinds and grades of wheat was reiterated in every version of the CWB Act until the 1998 Amendments. The last reiteration of the regulatory authority was set out in paragraph 46(b) of the CWB Act as it read just prior to the 1998 Amendments:
46. The Governor in Council may make regulations
…
(b) to exclude any kind of wheat, or any grade thereof, or wheat produced in any area of Canada, from the provisions of this Part, either in whole or in part, or generally, or for any period;
46. Le gouverneur en conseil peut, par règlement :
[…]
b) soustraire tout type ou grade de blé, ou le blé produit dans une région donnée du Canada, à l’application de la présente partie, totalement ou partiellement, de façon générale, ou pour une période déterminée;
Thus, specific kinds or grades of wheat, or wheat produced in a particular area of Canada, could be excluded from the CWB’s marketing monopoly for specific periods or generally.
[44] Likewise, in 1948, amendments to the CWB Act came into force for the purpose of adding a new part (now Part V) empowering the Governor in Council to extend the application of Part III (concerning the compulsory price pooling system) or of Part IV (concerning the CWB marketing monopoly over international and interprovincial trade) to oats and barley: An Act to amend The Canadian Wheat Board Act, 1935, 11-12 Geo. VI, c. 4, s. 5, assented to on March 24, 1948. These provisions have remained essentially the same throughout the years, and their most recent reiteration is currently set out in section 47 of the CWB Act, which reads as follows:
47. (1) The Governor in Council may, by regulation, extend the application of Part III or of Part IV or of both Parts III and IV to oats or to barley or to both oats and barley.
(2) Where the Governor in Council has extended the application of any Part under subsection (1), the provisions of that Part shall be deemed to be re-enacted in this Part, subject to the following:
(a) the word “oats” or “barley”, as the case may be, shall be substituted for the word “wheat”;
(b) the expression “oat products” or “barley products”, as the case may be, shall be substituted for the expression “wheat products”; and
(c) [Repealed, 1995, c. 31, s. 4]
(d) subsection 40(2) is not applicable.
(3) An extension of the application of Part III shall come into force only at the beginning of a crop year.
(4) For the purposes of this section, “product”, in relation to any grain referred to in subsection (1), means any substance produced by processing or manufacturing that grain, alone or together with any other material or substance, designated by the Governor in Council by regulation as a product of that grain for the purposes of this Part.
47. (1) Le gouverneur en conseil peut, par règlement, étendre l'application de la partie III ou de la partie IV, ou des deux, à l'avoine et à l'orge, ou à l'un des deux.
(2) En cas d'application du paragraphe (1), les dispositions de la partie en cause sont réputées édictées de nouveau dans la présente partie, sous réserve de ce qui suit :
a) le terme « avoine » ou « orge », selon le cas, est substitué au terme « blé »;
b) le terme « produits de l'avoine » ou « produits de l'orge », selon le cas, est substitué au terme « produits du blé »;
c) [Abrogé, 1995, ch. 31, art. 4]
d) le paragraphe 40(2) ne s'applique pas.
(3) L'extension du champ d'application de la partie III ne peut entrer en vigueur qu'au début d'une campagne agricole.
(4) Pour l'application du présent article, « produit de l'avoine » ou « produit de l'orge », selon le cas, s'entend de la substance obtenue par la transformation ou la préparation industrielle du grain en cause, seul ou mélangé à d'autres substances et que le gouverneur en conseil désigne, par règlement, comme produit de ce grain pour l'application de la présente partie.
[45] The powers of the Governor in Council under this section were found by our Court to include the authority to exclude by regulation the application of Parts III or IV of the CWB Act to oats and barley: Saskatchewan Wheat Pool v. Canada (Attorney General) (1993), 67 F.T.R. 98, 107 D.L.R. (4th) 190, at paras. 35-36.
[46] The 1998 Amendments provided for a change to section 47(1) by restricting its application to barley, and by adding a new subsection 47(5) making the adoption of the regulation contemplated by subsection 47(1) subject to prior consultation with the CWB and the favourable vote of barley producers: section 25 of the 1998 Amendments. However, these modifications were never proclaimed into force.
[47] The 1998 Amendments also provided for other changes which were eventually proclaimed in force, notably: (a) the repeal of the regulatory authority under paragraph 46(b) of the CWB Act (reproduced above) to exclude a kind or grade of wheat from the CWB marketing monopoly, and (b) the introduction of section 47.1 into the CWB Act: subsection 24(1) and section 25 of the 1998 Amendments. It is useful to reproduce once again section 47.1:
47.1 The Minister shall not cause to be introduced 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 in Canada, from the provisions of Part IV, either in whole or in part, or generally, or for any period, or that would extend the application of Part III or Part IV or both Parts III and IV to any other grain, unless
(a) the Minister has consulted with the board about the exclusion or extension; and
(b) the producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister.
47.1 Il ne peut être déposé au Parlement, à l’initiative du ministre, aucun projet de loi ayant pour ef