Court of Queen’s Bench Justice Chris Martin delivered his written judgment Tuesday in Winnipeg, clearing the way for a judge to hear the allegations on behalf of an estimated 70,000 or so western Canadian farmers who delivered grain to the wheat board’s pool accounts in 2010-11 and 2011-12.

“I think it is good news for the farmers who felt they weren’t dealt with fairly when (Agriculture Minister Gerry) Ritz and (Prime Minister Stephen) Harper were privatizing the wheat board,” Stewart Wells, a Swift Current, Sask., farmer and member of the Friends of the Canadian Wheat Board, said in an interview Thursday. “The wheels of justice grind slowly but they’re still grinding.

“It’s the first major progress since the case was launched in 2012 and it’s certified so this is going to be heard in court. It’s just not going to be swept under the rug somewhere. So that’s a pretty major advancement.”

However, Wells didn’t rule out the possibility that the government and G3 will appeal Justice Martin’s decision.

An out-of-court settlement is also possible.

The Harper government government removed the CWB as the sole marketer of western Canadian wheat and barley destined for export or domestic human consumption Aug. 1, 2012.

In 2015, G3 (Global Grain Group), newly formed to subsume the CWB, agreed to invest $250.5 million and in return received the CWB’s assets from the federal government.

G3 is a joint venture firm majority-owned by the state-owned Saudi Agricultural Livestock Investment Co. (SALIC) and Bunge.

The lawsuit brought by Brookdale, Man., farmer Andrew Dennis alleges Ritz acted unlawfully by taking $150.9 million of farmers’ money from the CWB’s pool accounts to help privatize the wheat board.

One hundred and forty-five million dollars was used to triple the wheat board’s contingency fund and $5.9 million went to cover some of the transition costs.

Under the Canadian Wheat Board Act, all money collected in the CWB’s pool accounts earned from marketing farmers’ grain was required to be paid to farmers, less board operating expenses.

“What’s alleged is that Gerry Ritz… was acting illegally and not in good faith — the legal phrase is misfeasance while in public office — when he directed money to the contingency fund that we argue ought to have been paid to farmers instead,” Wells said.

“We argue that he was morally and legally wrong to be hiving off money that should have gone to the pooling accounts and been paid to farmers but instead he was trying to build up the Canadian Wheat Board as an entity so he could later on give it away to Saudi Arabia and Bunge.”

The CWB’s board of directors unanimously passed a resolution calling on the government to cover the cost of privatizing the board instead of farmers, Wells said.

“And then Ritz said in public that he would pick up all the cost, but when the (CWB’s) final annual report came out it showed that they had taken $5.9 million out of the pooling account to cover restructuring costs,” he said. “It makes no sense. It just loops back to the notion that farmers weren’t being treated fairly.”

The suit also asks for $10 million, plus interest since 2012, in damages, bringing the total compensation sought to $160.9 million, excluding interest.

“It’s not that much per individual farmer (if the suit is won),” Wells said. “It totally depends how many tonnes they (farmers) delivered to the pools in those two years, but that’s one of the reasons class actions were invented. It wouldn’t make sense for one or a very small group of farmers to take this sort of action, but it certainly makes sense to launch it as a class.”

Farmers who delivered to the pools in 2010-11 and 2011-12 are automatically part of the class action lawsuit unless they opt out, Wells said.

More information for affected farmers will be posted on a website, he added.

Wells doesn’t know when the case will be heard, but doesn’t rule out it taking another three to five years to resolve.

“They (federal government and G3) have been deliberately trying to delay this process all the way along for the last 10 years… but this is a very significant step toward getting the action certified having the representative plaintiff Andrew Dennis named in the action so he can carry it forward on behalf of all these farmers,” Wells said. “It’s a really crucial step. Without this the case couldn’t have gone anywhere.”

Wells declined to disclose how much money has been spent litigating the case so far.

“We have said all along that we are very grateful to all of the farmers that supported us when we started fundraising for this action back in very, very late 2011 and then in 2012, 2013 and 2014,” he added. ‘We wouldn’t have gotten anywhere without the support of those farmers there’s no question about that. This is truly the farmers’ action. Everybody is looking forward to the result.”

While the case is about the alleged misuse of farmers’ money, it’s also about holding government to account, Wells said.

“Cabinet, through orders-in-council, can change some things but they can never override the existing legislation,” he said. “And that’s what we are arguing happened here — that Ritz was overriding the original legislation with his orders-in-council, which in turn makes his actions illegal.

“Whether they (farmers) agreed with the wheat board being a (mandatory) marketing agency or not they still didn’t deserve to have money taken from the pooling accounts and just given to the King of Saudi Arabia and Bunge.”

After taking over the CWB, the new G3, renamed G3 Canada Ltd., was 50.1 per cent owned by SALIC and Bunge and up to 49.9 per cent potentially owned by farmers, depending on how much grain they delivered to the new firm.

Farmers were to earn $5 of G3 equity for every tonne.

G3 Canada had two shareholders — G3 Global Grain Group and the farmers’ equity trust. Farmers who deliver to CWB own units in the trust and the trust owns shares in G3 Canada Limited.

After the farmers’ equity is fully allocated, or in seven years (2022), G3 Canada Ltd. can buy the equity, but isn’t obliged to.

In 2016 Reuters reported SALIC’s ownership within G3 Global Grain Group jumped to 75 per cent from 49 per cent, according to an April 28, 2016 Bunge filing.

— Allan Dawson is a reporter for the Manitoba Co-operator at Miami, Man.

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The Manitoba Court of Appeal has overturned a lower court judge’s ruling to strike the suit.

The higher court on Wednesday “ruled that our cause of action — ‘malfeasance while in public office’ — is legitimate, and that our litigation against the federal government can continue,” Wells said Friday via email.

“The alleged offence occurred when Gerry Ritz was the minister of agriculture and the Canadian Wheat Board was being destroyed by the Harper government in 2011.”

The decision, Wells said, means “we can continue our legal process which calls for the repatriation of $150 million to farmers who were marketing wheat and barley through the CWB in 2010-11 and 2011-12. The legal action also calls for $10 million in punitive damages. With interest accruing since 2012 the total number would be in the $190 million range.”

In a phone interview, Wells said the Court of Appeal’s written ruling underscores the suit’s credibility.

“There is nothing on the record before this court to suggest that the allegations (in the suit) are bald conclusions, patently ridiculous or manifestly incapable of proof,” the Court of Appeal’s written ruling states in part.

It goes on to say the lower court judge’s decision to strike the suit “is so clearly wrong as to amount to an injustice.”

Wells said it’s unclear when the suit will go before a judge to be certified. If it is, farmers who did business with the CWB during those two crop years will be part of the action, unless they opt out.

Of the $151 million the suit claims should’ve gone to farmers who delivered to the CWB, it alleges $145.2 million ended up in the CWB’s contingency fund and $5.9 million was withdrawn from the CWB’s pool accounts. The allegations have not been tested in court.

The CWB set up a contingency fund to cover losses that occurred when farmers opted to price grain sales outside the CWB’s pools. It was funded when transactions earned more than the prices farmers at which farmers sold. The fund was meant to break even over time.

“In order to fund the transformation of the board to a privately held entity, the defendants engaged in a course of conduct intended to reduce payments to farmers who had sold and delivered grain to the board during the class period and to increase the monies in the contingency fund,” the claim alleges.

The federal CWB Act didn’t allow the wheat board to use money earned from its pool accounts for anything other than covering its operating expenses. Gerry Ritz, who was agriculture minister at the time, said the government would cover the costs of transitioning the CWB to an entity that could be acquired by a private company.

“Nevertheless, the board improperly charged $5.9 million in transition costs to the pool accounts, which reduced the amount that was available to producers upon payment of their contracts during the 2011-12 crop year,” the claim alleges.

“The plaintiff pleads that the board breached its duty of good faith to the class (farmers who delivered to the CWB) by ignoring its obligations to the producers, and by allocating money to the contingency fund that otherwise would have been paid to the pool account contract holders.”

The Conservative government ended the CWB’s single-desk marketing authority effective Aug. 1, 2012.

— Allan Dawson is a reporter with the Manitoba Co-operator at Miami, Man.

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Mazankowski, the MP for the east-central Alberta riding of Vegreville from 1968 to 1993, died late Tuesday at age 85, his family said in a release Wednesday.

Born at Viking, Alta., Mazankowski farmed and set up automotive dealerships at Innisfree and later Vegreville, where according to his family he met then-prime minister John Diefenbaker on a speaking tour and was inspired to enter local, and later federal, politics.

On the Progressive Conservative opposition benches, Mazankowski served as the Tories’ critic for transport (1972-76, 1977-79, 1980-84) and Treasury Board (1976-77, 1981-83).

In Clark’s short-lived Tory government (1979-80), Mazankowski served as transport minister and minister responsible for the Canadian Wheat Board.

Returning to the government benches with Mulroney in 1984, Mazankowski served as deputy prime minister (1986-93), minister of finance (1991-93), minister responsible for Alberta (1986-92) and House leader in the Commons (1986-88). Thus he “became known as the ‘minister of everything,'” Alberta Premier Jason Kenney said in a statement Wednesday.

In September 1988, Mazankowski replaced John Wise as minister of agriculture, a post he held through to April 1991.

Mazankowski is credited for his work during that time on the federal Farm Income Protection Act and Western Diversification program, and was considered a “strong advocate” for the Canada-U.S. Free Trade Agreement.

Honours bestowed on Mazankowski include the title of “Right Honourable” in 1993, the Order of Canada (2000, promoted 2013) and induction in the Alberta Order of Excellence (2003).

After leaving federal politics, he worked as a consultant and sat as a director on several corporate boards. He also helped negotiate the merger agreement creating the current federal Conservative Party, Kenney said.

“At the heart of his public service was a belief that Western Canada needed strong voices to defend its economic and political interests in the Canadian federation,” Kenney said in his statement Wednesday. “Maz was such a voice for decades. For that and for all that he did, Albertans are deeply grateful.”

Federal Conservative leader Erin O’Toole said Wednesday on Twitter that Mazankowski’s “dedication to Canadians is reflected in the Heart Institute that bears his name,” a reference to the Mazankowski Alberta Heart Institute in Edmonton.

The Mazankowski family said it will hold a private memorial “given the circumstances of COVID-19,” to be followed by a public memorial “when circumstances permit.” — Glacier FarmMedia Network

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David Anderson, MP for the southwestern Saskatchewan riding of Cypress Hills-Grasslands since 2000, announced Monday he won’t seek re-election on Oct. 21.

Anderson, 61, didn’t give a specific reason for his departure in his statement Monday, other than to say “the time has come to step down,” adding “it has been an honour to serve the people of southwest Saskatchewan and I know I will miss doing so in the future.”

Currently the secretary for human rights and religious freedom in the Conservatives’ shadow cabinet, Anderson said it’s “my expectation that Andrew Scheer and his caucus will form the next government of Canada and I give them my support and best wishes.”

Before entering federal politics, Anderson farmed at Frontier, Sask., about 170 km southwest of Swift Current.

First elected as a Canadian Alliance MP, Anderson was that party’s associate critic for agriculture, behind southern Manitoba MP Howard Hilstrom in the lead chair. He also served as critic for the CWB, a portfolio he also handled after the Alliance’s 2003 merger into the Conservatives.

During the Conservatives’ run in government under Stephen Harper, Anderson sat as parliamentary secretary for the CWB from 2006 to 2013, then as parliamentary secretary for foreign affairs from 2013 to 2015.

Following the Conservatives’ return to official Opposition in 2015, Anderson served briefly (2016-17) as the party’s lead agriculture critic under interim leader Rona Ambrose.

When the CWB’s single marketing desk for Prairie wheat and barley was deregulated in 2012, Harper hailed Anderson in a speech as having “long fought hard for marketing freedom for his fellow farmers.”

Harper also credited Anderson with spearheading the move for formal pardons for Prairie farmers charged with violating the federal CWB Act. — Glacier FarmMedia Network

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In a written ruling released Monday, Master Shayne Berthaudin of the Manitoba Court of Queen’s Bench ruled against the government’s attempt to walk away from a putative class action, which claims more than $145 million in damages owed to farmers who delivered wheat and barley to the CWB in the 2010-11 and 2011-12 crop years, along with $10 million in punitive damages.

“This ruling puts the government’s shirt in the wringer,” Stewart Wells, a farmer at Swift Current, Sask. and chair of the Friends of the Canadian Wheat Board (FCWB), said in an interview Thursday.

“In the proposed class action farmers contend the former minister of agriculture, Gerry Ritz, deprived farmers of monies they should have received from the 2010 and 2011 crop years. Instead of paying farmers, we believe this money was used to sweeten the pot for whoever was going to acquire the wheat board.”

G3 Global Grain Group, a joint venture of U.S. agribusiness Bunge and Saudi Agricultural and Livestock Investment Co. (SALIC), acquired the CWB and its assets in 2015.

The federal government’s failure to stop the lawsuit clears the way for it being certified, Bruun, a Winnipeg lawyer, said in an interview.

“We have the paperwork filed seeking certification of the class action already,” said Bruun, adding he is confident it will be approved by the court.

Bruun represents the proposed class’ representative plaintiff, Brookdale, Man. farmer Andrew Dennis, together with Jordan Goldblatt and Louis Century, Toronto-based lawyers specializing in civil litigation and class proceedings.

Of the $151 million Dennis claims should’ve gone to farmers who delivered to the CWB, he alleges $145.2 million ended up in the CWB’s contingency fund and $5.9 million was withdrawn from the CWB’s pool accounts. The allegations have not been tested in court.

The CWB set up a contingency fund to cover losses that occurred when farmers opted to price grain sales outside the CWB’s pools. It was funded when transactions earned more than the price farmers sold at. The fund was meant to break even over time.

“In order to fund the transformation of the board to a privately held entity, the defendants engaged in a course of conduct intended to reduce payments to farmers who had sold and delivered grain to the board during the class period and to increase the monies in the contingency fund,” Dennis’ statement of claim alleges.

The federal Canadian Wheat Board Act didn’t allow the wheat board to use money earned from its pool accounts for anything other than covering its operating expenses. Gerry Ritz, the federal agriculture minister at the time, said the government would cover the costs of transitioning the CWB to an entity that could be acquired by a private company.

“Nevertheless, the board improperly charged $5.9 million in transition costs to the pool accounts, which reduced the amount that was available to producers upon payment of their contracts during the 2011-2012 crop year,” the claim alleges.

“The plaintiff (Dennis) pleads that the board breached its duty of good faith to the class (farmers who delivered to the CWB) by ignoring its obligations to the producers, and by allocating money to the Contingency Fund that otherwise would have been paid to the pool account contract holders.”

‘Not reason enough’

Dennis’ claim, Berthaudin wrote, alleges regulations passed by the federal government raised the upper limit of funds that could be credited from the Contigency Fund, to $200 million from $60 million, after which $145.248 million, otherwise due to be paid to the class, was diverted to the fund.

The government’s argument behind its motion to strike out the statement of claim, Berthaudin wrote, was that the regulations passed were “statutorily authorized to be passed and are validly enacted (and thus) cannot constitute unlawful conduct.”

However, it’s “not plain and obvious to me that the plaintiff could not establish at trial that there was an unauthorized purpose behind the passage of the regulations and the flowing of funds from the pool account to the contingency fund,” he wrote in his dismissal of the government’s motion.

“More particulars may become apparent once documentary discovery has occurred, but that is not reason enough to conclude that the pleading of material facts thus far is insufficient.”

Further, Berthaudin wrote, the government’s other argument — that Dennis’ claim constitutes an abuse of process — relies on decisions from previous CWB-related proceedings, but the judge found the “underlying factual allegations” in this claim are different from those seen in previous rulings.

The judge specifically noted a 2013 Federal Court ruling which shot down most of a previous class action suit filed by Dennis and other farmers. In that ruling, the Federal Court “specifically did not strike out such claims, allowing them to proceed,” Berthaudin wrote.

FCWB, a longtime opponent of the former Conservative government’s deregulation of the CWB’s single desk marketing authority, is backing the proposed class action suit.

— Allan Dawson is a reporter for the Manitoba Co-operator at Miami, Man. Follow him at @AllanReporter on Twitter. Includes files from AGCanada.com Network staff.

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Dennis is seeking certification of a class action lawsuit on behalf of all farmers who delivered wheat and barley to the single desk marketing agency during the two crop years preceding the end of its monopoly on marketing in 2012.

The statement of claim names the Government of Canada, G3 Global Grain Group and G3 Limited as Defendants. G3 is the private entity which acquired the CWB following a July 31, 2015, transaction.

“When we were reviewing the CWB’s Annual Reports for 2010-11 and 2011-12, it appeared that $145 million, which should have been paid to farmers as part of their final payment, had been withheld and transferred to the CWB’s Contingency Fund,” said Dennis in a release.

“This claim is about establishing accountability for the disposition of the Canadian Wheat Board, allocating financial responsibility to the appropriate parties, and ultimately getting any funds recovered back to prairie farmers,” said Stewart Wells, a farmer from Swift Current, Saskatchewan and chairperson of the Friends of the Canadian Wheat Board.

Anders Bruun, one of the lead lawyers for the plaintiff went on to note that “Some restructuring expenses were paid from the pooling accounts, but the Contingency Fund appears to be the largest single source of apparently misappropriated funds.”

Dennis was previously part of a claim against the government and the CWB in the Federal Court. On May 15, 2017, his lawyers will be seeking leave to discontinue the Federal Court proceeding in favour of the Manitoba Court Class Action.

Bruun is representing the lead plaintiff together with Steven Shrybman of Goldblatt Partners, a Toronto and Ottawa law firm specializing in class actions and Jordan Goldblatt of Adair Barristers, Toronto which also has substantial class action litigation experience.

The statement of claim may be viewed and/or downloaded at www.cwbafacts.ca/wp-content/uploads/2017/04/SOC-Manitoba-Apr-24-2017.pdf.

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Whether that’s actually possible is a question for another time — but the data being used to make the case for a return of the CWB single desk warrants closer scrutiny.

“Where’s the $6.5 billion?” asks Kyle Korneychuk, a former CWB director and current spokesperson for the Canadian Wheat Board Alliance, citing a figure that has worked its way to the forefront of calls for a renewed central marketing agency.

A group of 50 farmers in western Manitoba/eastern Saskatchewan unanimously passed a resolution on Feb. 12 “calling for the re-establishment of the Canadian Wheat Board and single-desk selling of grain in Western Canada.”

That call made its way to Ottawa. “The Canadian Wheat Board Alliance tells us the loss of the single desk system has meant a whopping $6.5 billion shortfall for grain farmers in just the past two years,” NDP leader Tom Mulcair during question period in the House of Commons on Tuesday.

Mulcair went on to ask whether or not the governing Liberal party “would help farmers and restore the Canadian Wheat Board.”

The question was met with deflection by Agriculture Minister Lawrence MacAulay, who noted the CWB had transitioned to privately-owned G3 Canada, “with no ties to the government.”

The question remains: Where is the $6.5 billion? Did farmers actually lose that much money because of the demise of the CWB? If so, what’s to be done?

The $6.5 billion figure comes from a study conducted by University of Saskatchewan agricultural economist Richard Gray.

Titled The Economic Impacts Of Elevated Export Basis Levels On Western Canadian Grain Producers 2012-13, 2013-14 And 2014-15, the actual study contains no mention of the CWB.

Rather, the research highlights wider-than-normal discrepancies between the prices at port at Vancouver and those received by farmers during the timeframe of the study, with railway logistics issues taking the brunt of the blame.

Wheat is a major component in the calculations used to reach the $6.5 billion number, but canola, oats and other crops that were never under the purview of the CWB single desk are also included.

The study can be found online on the Saskatchewan Wheat Commission website.

“A lack of transportation (and) grain handling capacity cost producers a lot of money,” said Gray when reached by phone and asked for the basic premise of the study.

The focus now, he said, should be on increasing the capacity of the system with the “Wheat Board issue way under the bridge.”

While he agreed the loss of the CWB’s single desk played a part in transportation issues of 2013-14 and 2014-15, Gray noted basis levels between the port and the country were still “normal” during the first year of the study in 2012-13, the first year without the CWB’s single desk.

Basis levels have “returned to normal this crop year as well,” said Gray.

“It’s all based on flawed analysis,” said John DePape, of Farmers Advanced Risk Management Co. (FarmCo) on efforts to link Gray’s findings to the loss of the CWB single desk.

The methodology of the study “is fraught with issues that lead to erroneous conclusions,” he said, and the calculations do not include all of the factors needed to accurately compare the Wheat Board era with the present day.

“When things are tight, and you have the capacity, they (grain companies) will pay up for it if they need it,” said DePape.

The logistical issues of the 2013-14 crop year left many companies plugged and unable to do extra business at any price, he said. However, even when grain companies don’t actually need to take delivery to meet a forward-contracted sale, they still offer a (lower) price to the producer.

Gray echoed that sentiment, noting grain handlers lower their bids when they can’t move what’s offered. A solution to that problem, he said, is increased capacity along the grain handling chain.

In addition, better price reporting and transparency, as is more widely available in the U.S., would also be beneficial.

CWBA’s Korneychuk, who farms at Pelly, Sask., about 110 km northeast of Yorkton, allowed that bringing back the single desk may be an uphill battle.

While the group will continue to work toward that goal, he said improvements to the current open market system would also be welcomed by farmers.

In the old system, he said, there was more transparency and mechanisms “where farmers could see inside the veil.” For example, he said, cleaning and elevation costs used to be more readily available.

“Right now the pendulum has swung way too far, and it needs some correction. And it will get corrected, because farmers are getting gouged now and they can only go so long.”

Beyond the question of the $6.5 billion, Korneychuk had one more question that may be even more relevant than the focus on a number that, even if valid, may only have a loose connection to arguments for or against the former CWB single desk.

He asked, “Should farmers have any say in their own industry when it comes to marketing grain?”

— Phil Franz-Warkentin writes for Commodity News Service Canada, a Winnipeg company specializing in grain and commodity market reporting. Follow CNS Canada at @CNSCanada on Twitter.

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Hehn, who died Sept. 16 at age 79, had farmed at Markinch, about 65 km north of Regina, and was involved in several farm organizations, becoming a member of the board of directors for Winnipeg-based grain handler United Grain Growers (UGG) in 1970.

Hehn became UGG’s president, relocating to Winnipeg in 1981. He led the company until 1990, when he quit to accept an appointment from then-prime minister Brian Mulroney’s minister of state for grains and oilseeds, Charlie Mayer, as chief commissioner for the Canadian Wheat Board.

In his notice of resignation that fall, Hehn said he had “mixed feelings” about leaving UGG — which by then was well established as a vocal opponent of the CWB’s single marketing desk for Prairie wheat and barley.

UGG, Hehn wrote, “has always demonstrated that it can and does put farmer-shareholder interests ahead of company interests many times, I daresay, at the expense of our bottom line.”

Hehn, according to his obituary, was “instrumental in advocating for reform on behalf of farmers” during his stint at the CWB.

He steered the Crown corporation through a 1997 plebiscite in which just under two-thirds of voting barley growers chose to keep Prairie barley as part the CWB’s single-desk monopoly.

The obituary noted Hehn’s “strength of character and conviction to speak his mind in order to effect change on behalf of those whom he represented.”

Hehn also led the CWB through a level-of-service complaint to the Canadian Transportation Agency against Canadian National and Canadian Pacific Railways (CN, CP) over the railways’ service in the 1996-97 crop year.

CN reached a “no-fault” settlement with the CWB, while the CTA ruled in 1998 that CP had discriminated against grain movement and in some instances breached its level of service. The CWB’s commissioners, in their 1997-98 report, said the railways’ grain movement became “significantly better” the following crop year.

Hehn was also the CWB’s last chief commissioner, as changes to the Canadian Wheat Board Act led to the appointment of a CEO and a 15-member board of directors including 10 elected farmers, starting in 1998.

While working for the CWB, Hehn “truly enjoyed visiting other countries and he was curious and excited to explore other cultures. However, he was a farmer at heart, and was always the happiest when he was ‘working on the land,'” his obituary said.

Hehn, who relocated to Saskatoon in his post-CWB life, also served on the boards of directors for RBC, PotashCorp and Lutheran Life.

His obituary described him as an “important figure in Canadian agriculture (and) a businessman who always placed the needs of farmers first and foremost in his decisions and actions.”

Hehn’s funeral service was held last Monday (Sept. 28) at the hall in Markinch. — AGCanada.com Network

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The four farmers, whose previous proposed class action was dismissed with costs in April by the Supreme Court of Canada, announced Monday that their lawyers served an amended statement of claim on Friday in Federal Court in Ottawa.

The four — Andrew Dennis of Brookdale, Man., Nathan Macklin of DeBolt, Alta., Harold Bell of Fort St. John, B.C. and ex-CWB director Ian McCreary of Bladworth, Sask. — had originally sought to lead an action on behalf of Prairie wheat and barley growers, claiming about $17.06 billion in damages from the end of the CWB’s single marketing desk.

Friday’s amended statement of claim instead alleges only that the federal government “shortchanged farmers by approximately $720 million of farmers’ money” from the CWB in 2011-12, as Ottawa moved to deregulate and dismantle the CWB’s single marketing desk for Prairie wheat and barley.

The share of CWB revenue allocated to farmers during the 2011-12 crop year was “substantially out of line” with previous years of wheat board operations, according to Stewart Wells, chair of Friends of the Canadian Wheat Board, a pro-single-desk group supporting the proposed class action.

“The audited financial statements of the Canadian Wheat Board show that when the elected farmers were running the (board of directors at the) CWB, almost 93 per cent of sales revenue was returned to farmers” between 1998 and the 2010-11 crop year, Wells said Monday in a release.

There is “no justification,” he said, for the CWB to return only 83 per cent of sales revenue to farmers in 2011-12.

The difference between 93 and 83 per cent “is in the order of $720 million,” said Wells, who farms near Swift Current, Sask. and was a member of the farmer-elected portion of the CWB’s board until the federal government fired those directors in 2011.

“It should be noted that 2011-12 sales recorded the third highest revenue since farmers were put in charge of the board in 1998,” he added.

“The CWB Act makes it clear that only the actual costs of the CWB’s operations to sell a crop can be deducted from the money to be paid to farmers for that crop,” the farmers’ Winnipeg lawyer, Anders Bruun, said in FCWB’s release Monday.

“We are concerned that the CWB’s expenses more than doubled for the 2011-12 crop year after the (farmer-led board members) were removed on Dec. 15, 2011.”

“No arguments”

The farmers, in their previous suit, alleged the federal government, in the CWB’s 2011-12 pool period, “used monies that should have been paid to producers… to cover substantial costs and losses” relating to CWB’s shift away from the single desk.

The farmers, in their suit, had also claimed the government “failed to establish a reasonable price for grain remaining unsold after the 2011-12 pool period… (and thus) caused an improper transfer from the amount to be distributed to producers.”

Federal Court Justice Daniele Tremblay-Lamer, whose 2013 ruling against the four farmers’ previous lawsuit was upheld by the Supreme Court dismissal, said in her ruling that she would allow those aspects of the farmers’ case to continue.

Lawyers for the federal government, during that previous court case, presented “no arguments… to demonstrate that the claims are untrue or could not succeed at trial,” Tremblay-Lamer wrote at the time.

Wells said Monday the FCWB plans also to ask the federal Auditor General to investigate “what really happened to the money farmers should have earned from their grain sales in 2011-12.” — AGCanada.com Network

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The Supreme Court of Canada on Thursday dismissed, with costs, the farmers’ application for leave to appeal their 2013 loss in Federal Court.

The four — Andrew Dennis of Brookdale, Man., Nathan Macklin of DeBolt, Alta., Harold Bell of Fort St. John, B.C. and ex-CWB director Ian McCreary of Bladworth, Sask. — had sought to lead a class action on behalf of Prairie wheat and barley growers, claiming about $17.06 billion for damages they say stem from the end of the CWB’s single marketing desk.

Their suit was filed in the wake of the federal Marketing Freedom for Grain Farmers Act taking effect in 2012, ending the Wheat Board’s monopoly on Prairie wheat, durum and barley exports and firing the farmer-elected portion of the CWB’s board of directors.

The former board now pools and markets wheat, barley, durum and canola under the CWB brand, through handling arrangements with Prairie grain companies and through a network-in-progress of its own inland and port grain handling assets.

Friends of the Canadian Wheat Board — a farmer group that unsuccessfully fought the Marketing Freedom Act in court in 2012 and later backed the four farmers’ suit — is “naturally disappointed” by the latest dismissal, spokesman Stewart Wells, another ex-CWB director, said Thursday.

Canada’s legal system, he said, “has quite simply not been able to afford justice to western Canadian farmers so far.”

Federal Agriculture Minister Gerry Ritz, in a separate statement Thursday, said the top court’s ruling “upholds western Canadian farmers’ right to marketing freedom.”

Since his legislation took effect, an “overwhelming majority” of Prairie farmers have “embraced the new economic opportunities” it’s created, Ritz said, adding that “marketing freedom is and will remain the law of the land.”

The Supreme Court dismissal upholds Justice Daniele Tremblay-Lamer’s 2013 ruling at the Federal Court, where the farmers, she wrote, claimed the federal government had “unlawfully expropriated assets belonging to the CWB in which the plaintiffs had an interest.”

The Crown, she wrote, couldn’t take away one’s property without compensation “unless the statute clearly provides otherwise,” but the farmers, in their suit, did not establish “a de facto taking” that would involve compensation.

The farmers’ claim, she said, showed neither “an acquisition of a beneficial interest in the property” nor “removal of all reasonable uses of the property” — and the farmers’ loss of the CWB single desk to changes in legislation “is not enough in itself to claim a loss of a property interest.”

“Should have been paid”

That said, Tremblay-Lamer’s ruling also allowed the farmers’ remaining claim to continue, in which they allege the federal government, during the Wheat Board’s 2011-12 pool period, “used monies that should have been paid to producers… to cover substantial costs and losses” relating to CWB’s shift away from the single desk.

The farmers, in that part of their suit, also claimed the government “failed to establish a reasonable price for grain remaining unsold after the 2011-12 pool period… (and thus) caused an improper transfer from the amount to be distributed to producers.”

On that point, Tremblay-Lamer wrote, government lawyers presented “no arguments… to demonstrate that the claims are untrue or could not succeed at trial.”

FCWB’s Wells said Thursday that Canada’s courts thus gave the farmers “a green light to proceed with the parts of the class-action case based on the misallocation of CWB pool account funds in 2011-12, and we will be turning our attention to those details in the coming weeks.”

In the meantime, FCWB said, the government’s “highly dysfunctional” replacement system has led the spread between port prices and farm gate prices to widen, causing losses estimated at $3 billion in 2014-15. “Those price spreads have not returned to competitive levels, so farmer losses continue to mount.”

Canada’s customers, Wells added, “are now complaining about Canadian quality and Canadian grain is reported to be lowest price on some international tenders. The dozens of grain ships waiting in Vancouver are only the most visible symptom of this mess.” — AGCanada.com Network

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