ATTORNEY GENERAL OF CANADA , THE MINISTER OF AGRICULTURE v. AGRI-FOOD IN HIS CAPACITY AS MINISTER RESPONSIBLE, 2012 FCA 114

Federal Court of Appeal Cour d'appel fédérale Date: 20120416 Docket: A-470-11 A-471-11 Citation: 2012 FCA 114 Present: MAINVILLE J.A.

A-470-11 BETWEEN: ATTORNEY GENERAL OF CANADA , THE MINISTER OF AGRICULTURE AND AGRI-FOOD 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 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

Federal Court of Appeal Cour d'appel fédérale Dealt with in writing without appearance of parties. Order delivered at Montreal, Quebec , on April 16, 2012. REASONS FOR ORDER BY: MAINVILLE J.A. Date: 20120416 Docket: A-470-11 A-471-11 Citation: 2012 FCA 114 Present: MAINVILLE J.A.

A-470-11 BETWEEN: ATTORNEY GENERAL OF CANADA , THE MINISTER OF AGRICULTURE AND AGRI-FOOD 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

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 REASONS FOR ORDER MAINVILLE J.A. [ 1 ] I have before me a motion by the Council of Canadians, ETC Group (Action Group on Erosion, Technology and Concentration), the Public Service Alliance of Canada, and Food Secure Canada (the “moving parties”) seeking the Court’s leave to intervene in this consolidated appeal.

The appellants oppose the motion. [ 2 ] This consolidated appeal concerns the orders of Campbell J. of the Federal Court declaring that the Minister of Agriculture and Agri-Food breached his statutory duties under

section 47.1 of the Canadian Wheat Board Act , R.S.C. 1985, c. C-24 by failing to consult with the Canadian Wheat Board and to conduct a vote of wheat and barley producers as to whether they agree with the elimination of the Canadian Wheat Board’s exclusive statutory marketing mandate resulting from Bill C-18, now the Marketing Freedom for Grain Farmers Act , S.C. 2012, c. 25 . [ 3 ] The moving parties actively participated as interveners in the Federal Court proceedings before Campbell J. pursuant to an order of the Federal Court dated November 21, 2011.

In that order, Prothonotary Lafrenière found that the moving parties had a genuine interest in the effect of Bill C-18. He also found that none of the other parties to the Federal Court proceedings intended to address two issues of interest to the interveners, namely (

a) how

section 47.1 of the Canadian Wheat Board Act is to be interpreted in a manner that accords with the North American Free Trade Agreement (“NAFTA”), and (

b) the need to, and effect of, interpreting that

section in a manner that is consistent with fundamental constitutional values such as the rule of law and the Canadian Charter of Rights and Freedoms . [ 4 ] No party appealed the order of Prothonotary Lafrenière allowing the intervention. [ 5 ] Campbell J. relied on the submissions of the moving parties in his reasons cited as 2011 FC 1432 , particularly at paragraphs 23, 24, 27 and 28. He extensively and approvingly quoted from the moving parties’ submissions concerning the impact of the rule of law on the

interpretation of

section 47.1 of the Canadian Wheat Board Act (at para. 27 of his reasons), and gave weight to their argument that this

section is important to Canada’s international trade obligations under NAFTA (at para. 28 of his reasons). [ 6 ] The appellants submit that the moving parties ought not to be granted leave to intervene in this Court simply because they were permitted to intervene in the Federal Court. They add that the moving parties should be required to demonstrate anew in this Court why they satisfy the test for intervention. [ 7 ] The moving parties do not assert that they should have been made parties to this appeal as of right. They do however submit that the decision of Prothonotary Lafrenière authorizing their intervention before the Federal Court and the reliance placed on their

submissions by Campbell J. are both relevant factors to consider in deciding whether to grant leave to intervene in this appeal. [8] The factors that are to be considered in deciding to grant leave to intervene have been discussed in numerous decisions andneed not be repeated here. Reference may notably be made to the decisions of this Court in Canadian Airlines International Ltd. v.Canada (Human Rights Commission), (FCA), [2010] 1 F.C.R. 226 at paras. 8-9, Canadian Pacific RailwayCompany v. Boutique Jacob Inc., 2006 FCA 426 at paras. 19 to 21; and Canadian Taxpayers Federation v.

Benoit, 2001 FCA 71 at para.18. [9] These factors have already been analysed by Prothonotary Lafrenière, and his findings have not been appealed. Where leaveto intervene has already been granted in the Federal Court, barring a fundamental error in the decision granting leave, some materialchange in the issues on appeal, or important new facts bearing on the intervention, I do not see why this Court should not rely on thefindings of the Federal Court with respect to the intervention or exercise its discretion to grant leave differently from the Federal Court.

Irely for this proposition on the considered opinion of my colleague Stratas J. A. in Global Wireless Management Corp. v. Public MobileInc., 2011 FCA 119. [10] In this case, I see no fundamental error in the decision of Prothonotary Lafrenière, the issues in this appeal appear to be similarto those raised before the Federal Court, and no important new facts bearing on the intervention have been identified.

In suchcircumstances, leave to intervene in this Court shall be granted. [11] Both the moving parties and the appellants have proposed terms to the order granting leave to intervene, and, pursuant tosubsections 53(1) and 109(3) of the Federal Court Rules, the following conditions will apply to the intervention: a. The interveners’ written and oral submissions shall be limited to the following two issues: (

i) whether, and if so how,

section 47.1of the Canadian Wheat Board Act is to be interpreted in a manner that accords with the North American Free Trade Agreement, and (i)whether, and if so how, that

section is to be interpreted in a manner that is consistent with fundamental constitutional values such as therule of law and the Canadian Charter of Rights and Freedoms. b. The interveners shall not duplicate any issues or arguments contained in the memorandum of fact and law filed by the respondents. c. The interveners shall not add to the factual record in any way. d. The appellants shall serve the interveners with a copy of the appeal book within 3 business days of the order. e.

The appellants and respondents shall serve the interveners with a copy of their respective memorandum of fact and law at the sametime they serve any other party. f. The interveners shall serve on the appellants and the respondents and file a memorandum of fact and law of a maximum length of10 pages within 3 business days of service of the respondents’ memorandum of fact and law. g.

The appellants may serve and file, within 10 days of the service of the interveners’ memorandum of fact and law, a supplementarymemorandum of fact and law of a maximum length of 10 pages to respond to the arguments raised by the interveners. h. Unless otherwise directed by the panel hearing the merits of the appeal, the interveners shall be permitted to make oral submissionsof no more than 15 minutes in length. i. No costs shall be awarded either to or against the interveners in respect of this motion and in respect of the consolidated appeal. j.

The style of cause shall be amended to reflect that the moving parties are now interveners. "Robert M. Mainville" J.A. FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-470-11 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA ET AL. v. FRIENDS OF THE CANADIAN WHEAT BOARD ET AL. MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: MAINVILLE J.A. DATED: April 16, 2012 WRITTEN REPRESENTATIONS BY : Robert MacKinnon Zoe Oxaal FOR THE APPELLANTS Anders Bruun FOR THE RESPONDENT SOLICITORS OF RECORD : Myles J. Kirvan Deputy Attorney General of Canada FOR THE APPELLANTS Brunn, Anders Winnipeg, Manitoba FOR THE RESPONDENT