Happy holidays!

Happy holidays!

HIV/AIDS Vaccine Developed at The University of Western Ontario Proceeding to Human Clinical Trials Sumagen Canada, the vaccine (SAV001)

HIV/AIDS Vaccine Developed at The University of Western Ontario Proceeding to Human Clinical Trials






London, ON – The first and only preventative HIV vaccine based on a genetically modified killed whole virus has received approval by the United States Food and Drug Administration (FDA) to start human clinical trials.



Developed by Dr. Chil-Yong Kang and his team at The University of Western Ontario, with the support of Sumagen Canada, the vaccine (SAV001) holds tremendous promise, having already proven to stimulate strong immune responses in preliminary toxicology tests with no adverse effects or safety risks. It is the only HIV vaccine currently under development in Canada, and one of only a few in the world.



“FDA approval for human clinical trials is an extremely significant milestone for our vaccine, which has the potential to save the lives of millions of people around the world by preventing HIV infection," says Kang, a researcher and professor at Western's Schulich School of Medicine & Dentistry.



Western President Amit Chakma says, "This joint venture between Sumagen and Western is a prime example of what collaboration between private industry and university researchers can achieve. Dr. Kang and his team are to be commended for their exceptional talent and remarkable persistence in developing a vaccine that addresses a tragic health crisis affecting millions of people around the globe."





Dr. Dong Joon Kim, a representative of Sumagen Co. Ltd. says, “Our company has committed substantial resources to this project since 2005 and we are very pleased to reach this milestone. It is our desire to continue growing our business in Canada and being a part of the business community in London.”



HIV/AIDS has killed more than 28 million people worldwide, and more than 35 million people currently live with the virus infection. Since the virus was characterized in 1983, there have been numerous trials through pharmaceutical companies and academic institutions around the world to develop vaccines; however, no commercialized vaccine has been developed to date. Other HIV vaccines evaluated through human clinical trials have focused on either one specific component of HIV as an antigen, genetic vaccine using recombinant DNA, or recombinant viruses carrying the HIV genes. Kang’s vaccine is unique in that it uses a killed whole HIV-1, much like the killed whole virus vaccines for polio, influenza, rabies and hepatitis A. The HIV-1 is genetically engineered so it is non-pathogenic and can be produced in large quantities.



Before it can be commercialized, the SAV001 vaccine must go through three phases of human clinical trials:



•Phase I, set to begin in January 2012, will double check the safety of the vaccine in humans, involving only 40 HIV-positive volunteers.

•Phase II will measure immune responses in humans, involving approximately 600 HIV-negative volunteers who are in the high-risk category for HIV infection.

•Phase III will measure the efficacy of the vaccine, involving approximately 6,000 HIV-negative volunteers who are also in the high-risk category for HIV infection.

Through WORLDiscoveries, Western’s technology transfer office, Sumagen Canada has secured patents for the SAV001 vaccine in more than 70 countries, including the U.S., the European Union, China, India and South Korea. The vaccine has been manufactured at a bio-safety level 3 (BSL3) good manufacturing practice (GMP) facility in the U.S.



Download high resolution photos















About Sumagen Canada



Located in The Stiller Centre for Technology Commercialization in Western’s Research Park in London, Ontario, Sumagen Canada was established in 2008 specifically to manage and support clinical development of Kang’s vaccine. Sumagen Canada is a subsidiary of Sumagen Co. Ltd., a Korean-based pharmaceutical venture company.





About The University of Western Ontario



Located in London, Ontario, The University of Western Ontario is one of Canada’s leading research-intensive universities, committed to producing generations of talented leaders and innovations of national benefit and global value and significance.

National securities regulator decision coming: Supreme Court ruling will not please all provinces.

The Supreme Court is ready to pronounce judgment on whether Ottawa's controversial attempt to create a national securities regulator — without the consent of some provinces — is legal.

The country's top court said Monday it will rule on the constitutionality of Ottawa regulating in an area that had previously been thought to be provincial territory.

The single regulator concept was championed by Finance Minister Jim Flaherty almost from the moment he took office in 2006, with Ontario initially the only ally. Following a lengthy study process, the minister was able win over a number of provinces.

Federal Finance Minister Jim Flaherty backs the idea of a national securities regulator.(Canadian Press file photo)But with Quebec, Alberta and Manitoba still firmly in the no camp, and British Columbia and Saskatchewan vacillating, Flaherty decided to seek a clear legal green light.

The minister maintains a single regulator would be more effective in catching and prosecuting fraudsters.

"Those who commit securities fraud will face a tougher, more comprehensive regime. No more falling through the cracks," Flaherty said in the spring of 2010 when he announced plans to go to the court.

Ottawa's position has the backing of most national business groups as well as international bodies such as the Organization for Economic Co-operation and Development and the International Monetary Fund.

Opponents have noted that the presence of a single regulator in the United States did nothing to head off the subprime mortgage disaster that triggered a global recession in 2008.

Appeal courts in Quebec and Alberta have already ruled that Ottawa is treading on provincial jurisdiction with its proposed legislation.

But in a recent interview with The Canadian Press, Alberta Finance Minister Ron Liepert said his province would be willing to co-operate with Ottawa if the top court rules against the provincial position.

"At the end of the day, we've fought the battle, the court will rule and we live with it and move on," he said.

That does not mean every province will fall in line, however, and Quebec in particular has not softened its stance.

The current legislation does not require every province to join. The intention is to establish a national regulator and have as many provinces as possible "opt in," leaving the door open for others to follow.

Securities regulation in Canada is currently a fiefdom of the 10 provinces and three territories, although under the "passport" arrangement company documentation approved by one province is recognized by the others.

In arguments to the court in April, federal lawyers said securities trading is critical to the country's overall economy and hence is a national concern. Aside from the jurisdictional issue, opposing provinces argue that the current system of co-operation functions well and that Ottawa is trying to fix a problem that doesn't exist.

Liberal Leader Bob Rae is accusing Stephen Harper of showing a "lack of respect" toward the troubled First Nations community of Attawapiskat.

ATTAWAPISKAT, Ont. — Liberal Leader Bob Rae is accusing the Conservatives and Prime Minister Stephen Harper of showing a "lack of respect" toward the troubled First Nations community of Attawapiskat.




On Saturday, as he wrapped up a visit to see the community's housing crisis first-hand, Rae chided Harper -- who has long claimed to have a soft spot for northern Canada -- for not travelling to the region himself.



"Where there are real people living, and living in really difficult conditions, the prime minister has nothing to say -- he's not there," Rae said in a telephone interview.



"There's a great concern about the lack of respect that's been shown to people here. You show respect by coming, not by insisting that people come to see you."



Harper's regular forays to remote northern communities since he took office have carried a strong emphasis on issues like defence and sovereignty, but rarely any evidence that the prime minister or the government has forged much of a relationship with the people who live there, Rae said.



"I don't think he has a great deal of credibility with the people who are living here, or the people who are living in a great many other northern communities, because this is not about planes flying by or about defending the north from the Russians," he said.



"This is about defending the north from poverty, from terrible conditions in terms of housing and poor substandard education."



Rae's visit is the second for an opposition leader in as many weeks. NDP Leader Nycole Turmel visited Attawapiskat last month and promptly urged Harper to do the same.



A spokesman for the prime minister said in an email on Sunday that Harper will not being going to Attawapiskat and the top priority is to get help to the community.



The government infuriated local leaders by appointing a third-party manager to take over the band's financial affairs. Chief Theresa Spence has appealed to the courts for an injunction to oust the third party, who is being paid $1,300 a day from band funds. A ruling is expected Monday or Tuesday.



Emergency supplies continue to pour in -- including washing machines, detergent and blankets. However, large families remain crammed into cold, mould-stained shacks with no bathroom or running water. In one case, 20 people are living together in a two-room house.



The federal government has promised 22 new houses and a retrofit of a local healing centre to help ease the crisis.



The government's attempt to "turn the political tables" by trying to put the spotlight on how the band has managed its funds is "disgraceful," said Rae. He blamed the prime minister for cancelling the Kelowna accord, a Liberal initiative designed to improve living conditions for First Nations communities, and for abandoning various investments to aboriginal communities.



"He (Harper) has to wear this thing, he has to take personal responsibility for what's happened," Rae said.



"I certainly don't intend to let him off the hook."

New public health campus coming to downtown Montreal : will soon be the site of the largest public health school in North America.

A portion of the site that houses Montreal’s new downtown bus terminal will soon be the site of the largest public health school in North America.




The centre, which will be called the Norman-Bethune Public Health Campus, will be built at the corner of Berri Street and de Maisonneuve Boulevard, the current site of the Îlot Voyageur.



It will be affiliated with the University of Montreal.



More than 600 students

When it’s finished, 225 professors and researchers will work at the campus and more than 600 students will study there.



A spokesperson for the University of Montreal said the new facility would bring all of the school’s medical facilities into one place. Right now, they’re scattered across different buildings.



The project will cost $160 million, the majority of that coming from the provincial government.



The government of Quebec bought the Îlot Voyageur site for $200 million after another Montreal university, the University of Quebec at Montreal, bought the building with plans to turn it into student housing.



That project was one of two that almost brought the university to the brink of bankruptcy.



The government will sell off a large portion on the north end of the site for $100 million. It will not be used for the campus.



Michelle Courchesne, head of the treasury board, admitted that deal will amount to a loss, but said it’s worth it, given the prestige the campus will bring to the new health district.



Officials hope to see phase one of the public health campus open within the next four years.

Public Safety Minister Vic Toews acted unreasonably when he refused to allow two Canadians imprisoned in the United States to serve out their sentences in Canada, a Federal Court judge has ruled.

OTTAWA — Public Safety Minister Vic Toews acted unreasonably when he refused to allow two Canadians imprisoned in the United States to serve out their sentences in Canada, a Federal Court judge has ruled.



In two decisions posted to the Federal Court website Thursday, Justice James O’Reilly overturned Toews’ rejection of applications under the International Transfer of Offenders Act filed by Montreal native Franco Tangorra and Tomaso Villano, of Richmond Hill, Ont. Both men were arrested by American authorities for trying to traffic in or import large quantities of the drug Ecstasy.



Tangorra mailed 30,000 units of Ecstasy, concealed in motorcycle helmets, to an undercover agent. He was arrested in 2007 when he tried to collect payment and is now serving a sentence of seven years and three months in a U.S. prison. He is due for release in 2014.



Villano and an accomplice were caught in a New York State parking lot in 2006 with two garbage bags containing more than 100,000 Ecstasy pills. His sentence runs until October, 2012.



Tangorra had no previous criminal record, and Villano’s only other conviction was for failing to stop at the scene of an accident. Tangorra’s file included a supportive letter from his MP and a declaration from his wife that he was a good husband and father.



In rejecting the two applications, Toews disregarded evidence presented by the Correctional Service of Canada (CSC) that neither Tangorra nor Villano was likely to re-offend and that their transfers would pose no threat to Canada’s security.



According to O’Reilly’s written decisions, CSC said both men have social and family ties in Canada. If not transferred, CSC told Toews, they’d be deported to Canada at the end of their sentences and would not be subject to any supervision or control.



The rationale for transferring offenders is that it will aid in their rehabilitation and reintegration to society. “Our argument is that public safety is better served by the transfer,” said John Conroy, the Abbotsford, B.C. lawyer who represents both Tangorra and Villano.



“If a person isn’t transferred, then they’ll be deported free and clear, without any restriction,” Conroy said. “A gradual release we know is far more in the public interest in terms of public safety than having someone go to warrant expiry, then unlocking the door and kicking them out.”



O”Reilly’s intervention doesn’t clear the way for Tangorra and Villano to return to Canada, however. Instead, their cases will go back to Toews for reconsideration. Conroy said re-hearings — which typically occur within 60 days — are usually successful, but not always.



When Liberal governments were in power, they routinely approved transfer applications. But in a policy shift that has created a diplomatic flap with the United States, Conservative ministers have begun to reject a majority of them.



According to CSC data, the minister of public safety approved just 27 per cent of 89 transfer applications he considered in 2009-10, the latest year for which figures are publicly available. Nearly two-thirds of denials over the past decade involve people convicted of drug offences.



After judicial review, the Federal Court has been overturning a significant number of more recent ministerial denials. But the government’s omnibus crime bill, which received third reading in the House of Commons earlier this month, broadens the grounds under which the minister can deny transfer requests in future.



Until now, he could only reject applications on the basis of national security or if offenders were affiliated with organized crime. But the amended law says transfers can be denied if the minister believes offenders would endanger public safety or the safety of a child, or would continue to engage in criminal activity.



The Canadian Civil Liberties Association has argued that the amendments give the minister “an unconstitutional level of discretion” over whether Canadian citizens incarcerated abroad can return to Canada.



Irwin Cotler, the Liberal justice critic, said the changes raise the possibility of “untrammelled discretion” for the minister in approving or rejecting transfer requests. “It takes an objective assessment and makes it not only subjective, but he can actually, in an open-ended way, make a determination on any consideration whatsoever.”



Lisa Filipps, a spokeswoman for Public Safety Canada, said in an email that the government is “taking action to emphasize the protection of society as the paramount principle of our federal corrections system.”



It’s acting, she said, to ensure that Canadians “are safe and secure in their communities and, at the same time, that offenders are held accountable for their actions in Canada and abroad.”



In his review of Tangorra’s case, O’Reilly noted that Toews alluded to information that identified him as being linked to organized crime. According to CSC, those links were as a courier. Given the “unique facts and circumstances” of his case, Toews concluded, “a transfer would not achieve the purposes of the Act.”



But O’Reilly pointed out that the law requires him to intervene “where the decision does not include a conclusion that would justify the denial. A decision should also be quashed when it is based on information to which the applicant had no opportunity to respond. Both grounds apply here.”



In the case of Villano, Toews also cited the “unique facts and circumstances.” He noted that Villano’s offence involved a large quantity of drugs. Because he had an accomplice, Toews said others were probably involved who would have benefited financially had Villano been successful.



However, said O’Reilly, the minister didn’t actually conclude that Villano would commit an organized crime offence if transferred to Canada. “In fact, there was no evidence before him of any connection to organized crime.”



A spokesman for Toews said it would “not be appropriate” for the minister to comment on the cases.







Read more: http://www.ottawacitizen.com/news/Federal+judge+overturns+minister+attempt+convicts+jailed+from+serving+sentences+Canada/5867864/story.html#ixzz1gj6wcCD2

A class-action lawsuit by travellers who paid extra for seats on Air Canada flights because they were obese or disabled has received permission to take off from a Quebec judge.

A class-action lawsuit by travellers who paid extra for seats on Air Canada flights because they were obese or disabled has received permission to take off from a Quebec judge.



The lawsuit has been authorized by Quebec Superior Court Judge Catherine La Rosa, the Quebec-based law firm handling the case said Monday.



David Bourgoin, lead lawyer for the class-action suit, said 10 to 20 people have come forward with an interest to join to class, adding there has been "a lot of interest" from organizations and groups that represent people with medical conditions that may make them eligible for inclusion.



He said the intention is for those groups to encourage people they work with to come forward.



"We've asked for punitive damages and moral damages, too," said Bourgoin, of BGA Barristers and Solicitors, which has offices in Montreal and Quebec City.



"It's a violation of fundamental rights to discriminate against people with (medical) deficiencies."



The suit seeks $1,000 for "damages for pain, suffering or inconvenience with interest" and an additional $500 for "punitive and exemplary damages with interest" for all people involved.







Read more: http://www.montrealgazette.com/news/Canada+class+action+suit+gets/5849679/story.html#ixzz1gT8W20wz

Evidence admitted despite Charter violations: G20 Geek,”

Evidence admitted despite Charter violations



This frame grab shows Byron Sonne being interviewed by Toronto police Det. Tam Bui on June 23, 2010. Sonne was jailed for 330 days in pre-trial custody before he was granted bail in May.



At times it was hard for Byron Sonne’s father to keep his exasperation to himself.



During the first day of his son’s trial, Bue Sonne shook his head so animatedly while the Crown reviewed photos of the various chemicals in his son’s garage and workshop that Bue’s wife, Valerie, had to shush him.



“I have this stuff in my garage,” he whispered.



Byron Sonne, a 39-year-old computer hacker dubbed the “G20 Geek,” is charged with possessing explosive materials and “counselling the commission of mischief not committed” in the lead-up to the G20 Summit in Toronto.



He was arrested on June 22, 2010, and accused of plotting to bomb the meeting of world leaders while allegedly using social media to encourage others to disrupt the security apparatus. Sonne, who has no criminal record, spent 11 months in pre-trial custody before he was released on bail in May.



The first month of his highly anticipated trial, before judge alone, was spent arguing legal motions regarding the admissibility of evidence.



While conceding that police violated Sonne’s Charter rights — at least in part — at various points in their investigation, Justice Nancy Spies ruled Monday to allow the bulk of the Crown’s evidence, setting the stage for a long and protracted trial that won’t conclude until the spring.



After this week’s hearings, the trial will adjourn to March 17, due to scheduling conflicts.



Spies did not provide the full reasons for her ruling, but she said despite some individual breaches of rights, including the evidence would not bring the “administration of justice into disrepute,” as Sonne’s lawyers had argued.



They had sought the exclusion of most of the evidence against their client, arguing that police showed a general disregard for Sonne’s rights and a pattern of Charter violations, ranging from how they unlawfully obtained his identification by threatening to charge him with jaywalking, to using search warrant applications — parts of which were later disproved — riddled with conjecture.



Spies dismissed the argument that the search warrant applications were deliberately misleading, instead favouring the Crown’s position that although there were flaws, taken as a whole there was sufficient evidence and reasonable grounds to obtain a warrant.



Sonne’s lawyers declined to comment on Spies’ ruling since she did not release the reasons for her decision.



Sonne, a hobby chemist and hyperactive tinkerer, admitted to police in recorded interviews — available on YouTube here and here — that he did in fact possess materials that could be combined to make explosives, but he had not combined them.



What police originally thought was a homemade detonator turned out to be an electric thermometer.



On Wednesday, an explosives expert will begin testimony about the materials found in Sonne’s house.

Former Parti Québécois cabinet minister Daniel Paille has been elected the new leader of the Bloc Québécois.

Former Parti Québécois cabinet minister Daniel Paille has been elected the new leader of the Bloc Québécois.




"We have work to do," he said in his victory speech in French. "But that work is exceptional. Imagine, we have a unique chance, as a people, to build our country. I believe this."



Paille won on a second ballot against Maria Mourani. His total vote was 7,868 or 61.2 per cent. Mourani placed second, scoring 4,972 votes or 38.7 per cent of the vote. Jean-Francois Fortin was third.



Paille, 61, won the leadership but the election was hardly impressive. A sign of how moribund the Bloc has become, of the 36,341 paid-up members eligible to vote, only 14,039 bothered to mail in their ballots. That represents a participation rate of 38.7 per cent.



At the time of the May 2 federal election where the New Democrats crushed them, the Bloc had 50,000 members. That means a quarter of the members did not bother to renew their cards.

Sweden was one of four European Union member states to scupper hopes of a 27-country agreement to help strengthen the euro, but nevertheless plans to participate in the creation of a European bailout fund.

Sweden was one of four European Union member states to scupper hopes of a 27-country agreement to help strengthen the euro, but nevertheless plans to participate in the creation of a European bailout fund.






Speaking with the TT news agency on Friday morning, Swedish prime minister Fredrik Reinfeldt also expressed doubts about the likelihood of Sweden agreeing to abide by the pact, which was forged by the 17 eurozone countries, and which six other EU member states had at that time elected to support.



“It's not that Sweden, which isn't a member of the euro, wants to tie itself to rules which are completely tailored for the eurozone,” he said.



“The whole text is written to make eurozone members submit to certain restrictions and do certain things. A non-eurozone country can't reasonably sign up to that.”



Following an intense night of negotiations, Sweden, the UK, Hungary, and the Czech Republic refused signal their support for a deal requiring tighter fiscal discipline among the eurozone countries through changes to the current EU treaty.



Hopes for a deal stumbled in part over the UK's desire to include protections from future financial regulations that would have accompanied the treaty changes proposed by Germany and France.



While Britain and Hungary at first refused to sign on to the deal, Sweden and the Czech Republic had requested time to consult with their respective parliaments before agreeing to the new pact.



As a result, the 23 remaining EU members states agreed to forge an agreement for rules that would penalize fiscal profligacy and to increase resources available to bailout troubled EU economies through additional pledges to the International Monetary Fund (IMF) and the establishment of a new European bailout fund.



Later on Friday morning, however, Reinfeldt received clearance from the Riksdag's EU committee to approve the protocol changes agreed to by the eurozone countries, meaning Sweden has no plans to stand in the way of the deal.



Specifically, the committee approved Sweden's participation in a loan from the International Monetary Fund (IMF) that will help support a European bailout fund.



The committee also agreed to having Sweden support changes to the EU treaty that allow for countries that mismanage their economies to be punished, but stopped short of having Sweden abide by the new rules.



The question of the size of Sweden's contribution remains up for negotiation, according to the Europaportalen.se, a Swedish news website focusing on EU politics.



“We're not saying no. We think it's good that the eurozone countries have come up with something in all this chaos and we're not going to close the door on the eurozone countries as they try to put their economies in order,” EU committee vice chair Marie Granlund of the Social Democrats, told TT.



Liberal Party (Folkpartiet) MP Carl B.Hamilton, chair of the EU committee, was highly critical of the UK, which has refused to support the pact.



“They're splitting Europe. Great Britain has acted in an nonconstructive way. 'Unhelpful' as they say in English,” Hamilton told Europaportalen.se.



While there is no indication that Sweden plans to join the 23 other countries which have so far agreed to abide by the new budget rules, the possibility remains open that Sweden could join at a later date.



“We'll have to see what is actually meant by joining voluntary. We can't have any overoptimistic hopes that we can affect politics for the whole of Europe. But if we join, we can protect ourselves against having other countries make decisions that could injure us,” said Hamilton.



While Hamilton indicated his Liberal Party was open to Sweden eventually joining the pact, Granlund said the Social Democrats remain opposed.



“It would conflict with what the Swedish people have said in the referendum. It would mean an all to large involvement in the Swedish economy,” she told Europaportalen.se.



Exact details of the deal remain to be worked out in the coming months and will be enshrined in an international agreement parallel to the EU's current treaty.



However, the goal remains to eventually have the changes included in the EU treaty.

Federal Court of Canada Docket: T-1057-11 & Docket: T-1735-11 Citation : 2011 FC 1432

Federal Court

Cour fédérale

Date: 20111207

Docket: T-1057-11

Docket: T-1735-11

Citation : 2011 FC 1432

Winnipeg, Manitoba, December 7, 2011

PRESENT: The Honourable Mr. Justice Campbell

Docket: T-1057-11

BETWEEN:

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 AND RENE SAQUET

Applicants

and

ATTORNEY-GENERAL OF CANADA,

THE MINISTER OF AGRICULTURE AND

AGRIFOOD IN HIS CAPACITY AS MINISTER

RESPONSIBLE FOR THE CANADIAN

WHEAT BOARD AND THE CANADIAN

WHEAT BOARD

and

COUNCIL OF CANADIANS, ETC GROUP

(ACTION GROUP ON EROSION,

TECHNOLOGY AND CONCENTRATION),

PUBLIC SERVICE ALLIANCE OF CANADA

AND FOOD SECURE CANADA

Respondents

Interveners

Page: 2

Docket: T-1735-11

AND BETWEEN:

THE CANADIAN WHEAT BOARD, ALLEN

OBERG, ROD FLAMAN, CAM GOFF, KYLE

KORNEYCHUK, JOHN SANDBORN, BILL

TOEWS, STEWART WELLS

AND BILLWOODS

Applicants

and

THE MINISTER OF AGRICULTURE AND

AGRIFOOD IN HIS CAPACITY AS MINISTER

RESPONSIBLE FOR THE CANADIAN

WHEAT BOARD

Respondent

and

PCSC – PRODUCER CAR SHIPPERS OF

CANADA INC., LOGAN CONNOR, LEONARD

GLUSKA, BILL WOODS, MYRON FINLAY,

HOWARD VINCENT, GLEN HARRIS,

AND TIM COULTER

Interveners

REASONS FOR ORDERS

[1] The present Applications concern the rule of law and the disregard for it by the

Respondent Minister of Agriculture (the Minister).

[2] The law concerned is s. 47.1 of the Canadian Wheat Board Act, RSC 1985, c C-24 (the

Act) which requires the Minister to engage in a consultative process with the Canadian Wheat Board

(CWB) and to gain the consent of Western Canadian wheat and barley producers with respect to

Page: 3

proposed changes to the currently well-established process of marketing the grains in Canada. At

the present time, contrary to the requirements of s. 47.1, the Minister is unilaterally proceeding to

revolutionize the process by securing the imminent passage of legislation.

[3] A most recent reminder of the rule of law as a fundamental constitutional imperative is

expressed by Chief Justice Fraser in Reece v Edmonton (City), 2011 ABCA 238 at paragraphs 159

and 160:

The starting point is this. The greatest achievement through the

centuries in the evolution of democratic governance has been

constitutionalism and the rule of law. The rule of law is not the rule

by laws where citizens are bound to comply with the laws but

government is not. Or where one level of government chooses not to

enforce laws binding another. Under the rule of law, citizens have

the right to come to the courts to enforce the law as against the

executive branch. And courts have the right to review actions by the

executive branch to determine whether they are in compliance with

the law and, where warranted, to declare government action

unlawful. This right in the hands of the people is not a threat to

democratic governance but its very assertion. Accordingly, the

executive branch of government is not its own exclusive arbiter on

whether it or its delegatee is acting within the limits of the law. The

detrimental consequences of the executive branch of government

defining for itself – and by itself – the scope of its lawful power have

been revealed, often bloodily, in the tumult of history.

When government does not comply with the law, this is not merely

non-compliance with a particular law, it is an affront to the rule of

law itself […].

[Emphasis added]

[4] The Applicants each request a Declaration that the Minister’s conduct is an affront to the

rule of law. For the reasons that follow, I have no hesitation in granting this request.

Page: 4

I. The Scheme of the Act

[5] The CWB is a corporation without share capital that is charged by s. 5 of the Act with the

statutory objective to “market in an orderly manner, in interprovincial and export trade, grain grown

in Canada.” The scheme of the Act is as follows: by Part III, the CWB is required to buy all wheat

and barley produced in Manitoba, Saskatchewan, Alberta, and the Peace River District of British

Columbia; Part IV prohibits any person other than the CWB from exporting, transporting from one

province to another, selling or buying wheat or barley, subject to limited exceptions established by

the Act or its regulations; and Part V establishes the mechanisms by which the CWB’s marketing

authority may be altered, and contains s. 47.1, the interpretation of which is at the centre of the

present Applications:

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

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;

Page: 5

(b) the producers of the grain

have voted in favour of the

exclusion or extension, the

voting process having been

determined by the Minister.

b) les producteurs de ce grain

ont voté — suivant les

modalités fixées par le ministre

— en faveur de la mesure.

[Emphasis added]

The “board” referred to in s. 47.1 (a) is that of the CWB charged under the Act to direct and manage

the business and affairs of the Corporation (the Board). The “producers” referred to in s. 47.1 (b) are

those persons that farm grain in the area named in Part III (the Producers).

II. The Introduction of Bill C-18

[6] On October 18, 2011, the Minister introduced in Parliament Bill C-18: An Act to reorganize

the Canadian Wheat Board and to make consequential and related amendments to certain Acts

(Marketing freedom for grain farmers Act). The name of the legislation proposed in Bill C-18

accurately states the nature of the changes to the governance structure of the CWB, and, indeed, the

whole system of the marketing of grain in Canada; what is considered to be marketing freedom for

grain farmers will replace the present centralized marketing system.

[7] At the present time, Bill C-18 has passed second reading at the Senate and is before the

Standing Senate Committee.

III. Issues

[8] The present Applications are simple in nature; they are directed at an examination of the

Minister’s conduct with respect the requirements of s. 47.1. The Applicants confirm that the

Page: 6

validity of Bill C-18, and the validity and effects of any legislation which might become law as a

result of Bill C-18 are not in issue in the present Applications.

[9] The Applicants make it clear that their Applications are no threat to the Sovereignty of

Parliament to pass legislation. The controversy in the present case arises from the Act, legislation

that Parliament has already passed. Section 47.1 contains conditions which are known in law as

“manner and form” procedural requirements. This form of limitation on the exercise of legislative

power is well recognized in law. At paragraph 34 of the Producer Car Shippers argument, attention

is directed to the following passages from Professor Hogg’s text, Constitutional Law of Canada,

(Carswell, Toronto, 5th ed, 2007):

Would the Parliament or a Legislature be bound by self-imposed

rules as to the “manner and form” in which statutes were to be

enacted? The answer, in my view, is yes.

[…]

Thus, while the federal Parliament or a provincial Legislature cannot

bind itself as to the substance of future legislation, it can bind itself as

to the manner and form of future legislation.

[…]

It seems implausible that a legislative body should be disabled from

making changes to its present structure and procedures. Moreover,

the case-law, while not conclusive, tends to support the validity of

self-imposed manner and form requirements.

[Footnotes omitted]

(Motion Record of Producer Car Shippers, Tab 10)

[10] The Minister has attempted to argue that s. 47.1 does not meet the requirements of a

“manner and form” provision. I dismiss this argument and find any debate on “manner and form” is

Page: 7

not properly before the Court for determination. Section 47.1 is presumed to be constitutionally

valid, and no argument challenging this presumption has been properly presented in the present

Applications; to do so would require notice of a Constitutional Question which has not been given.

Thus, as the judicial review Applications are framed, the sole question for determination is: did the

Minister breach the process requirements of s. 47.1, and if so, what relief, if any, should be granted?

The answer to this question requires a statutory interpretation analysis.

IV. The Applications

[11] Both the CWB and the Producers place heavy reliance on the democratic process

instrumental in the marketing of grain under the Act. The present Applications have been launched

to protect the process and the separate, but conforming interests, of the Producers under T-1075-11

and the CWB under T-1735-11.

[12] It is an undisputed fact that the Minister tendered Bill C-18 without conducting the

consultation and gaining the consent expressed in s. 47.1 of the Act. As expressed by Chief Justice

Fraser in the quote above: “courts have the right to review actions of the executive branch to

determine if they are in compliance with the law and, where warranted, to declare government

action unlawful.” Thus, I find that the Minister’s decision to not comply with the conditions

expressed in s. 47.1, prior to tabling Bill C-18, is judicially reviewable pursuant to section 18.1 (3)

(b) of the Federal Courts Act, RSC 1985, c F-7.

[13] As a result, the issue is whether the factual and legal basis has been established for making

Declarations that state fault on the part of the Minister. Each Application supports the making of a

Page: 8

fault finding. The CWB supports the Producers’ argument in T-1057-11 and makes its own

argument on similar lines in T-1735-11. The CWB confirms this point as follows:

Although the Applications are framed somewhat differently, there is

significant overlap between the parties to, and the relief sought in, the

Applications. At their core, the Applications are each premised on

the failure of the Minister to comply with his statutory duty under

section 47.1 of the Act.

(Written Representations of the Canadian Wheat Board in T-1735-

11, para. 9)

[14] However, each Applicant frames the request for Declaratory relief in a slightly different

way. The Applicants in T-1057-11 express the claim for relief as follows:

(a) a declaration that the Minister breached his statutory duty to

consult with the Board and conduct a vote of wheat and barley

producers as to whether they agree with the removal of wheat and

barley from the application of Part IV of the Act and with the

elimination of the CWB’s exclusive statutory marketing mandate

(Breach Declaration);

and

(b) a declaration that the Minister breached the duty of fairness and

acted contrary to the legitimate expectations of producers in causing

the Bill to be introduced in Parliament without first consulting with

the Board and with producers through a producer vote (Legitimate

Expectation Declaration).

(Amended Notice of Application dated November 8, 2011)

And in T-1735-11 the Applicants express the request this way:

(a) a declaration that the Minister failed to comply with his statutory

duty pursuant to section 47.1 of the Act, to consult with the Board

and to hold a producer vote, prior to the causing to be introduced in

Parliament Bill C-18, An Act to reorganize the Canadian Wheat

Board and to make consequential and related amendments to certain

Acts ( “Bill”) (Breach Declaration);

and

Page: 9

(b) a declaration that the Minister has acted in breach of the

legitimate expectations of the CWB, the Board and producers, and

contrary to the duty of fairness, in causing to be introduced in

Parliament the Bill without first consulting with the Board and

holding a producer vote (Legitimate Expectation Declaration);

(Notice of Application dated October 26, 2011)

[15] By consent, given the conjunction of both Applications, and the consolidated argument filed

by the Minister in response, it is appropriate to determine each Application with a separate order,

but on the basis of the present single set of consolidated reasons which addresses the core arguments

which have equal application to both.

[16] Two interventions have been permitted: that of the Council of Canadians, and ETC

Group, the Public Service Alliance of Canada and Food Secure Canada (the “Council”); and that

of the Producer Car Shippers of Canada Inc. et al (“Producer Car Shippers”). The Council

maintains an interest in food sovereignty, food safety, food security, and the important role that

the CWB plays in maintaining and protecting those interests, and has permission to address how

s. 47.1 is to be interpreted in accord with NAFTA and the Charter. The Producer Car Shippers

maintain an interest in protecting the rights and investments of grain producers who ship their

own grain, and have permission to address the application of the “manner and form” doctrine

with respect to s. 47.1 of the Act.

Page: 10

V. Breach of the Law Challenge

A. The Test for Statutory Interpretation

[17] Whether the Minister breached the law is a matter of statutory interpretation and

consideration of the Minister’s conduct against that interpretation. I agree with the Applicants that

an appropriate test to be applied in the present Applications is as follows:

Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in the grammatical

and ordinary sense harmoniously with the scheme of the Act, the

object of the Act, and the intention of Parliament (Canada 3000 Inc,

Re: Inter-Canadian (1991) Inc (Trustee of), 2006 SCC 24 at para.

36; Bell ExpressVu Ltd Partnership v Rex, 2002 SCC 42 at para. 26).

(Applicants’ Memorandum of Fact and Law in T-1735-11, para. 44)

B. The Applicants’ Argument

[18] The Applicants argue that:

Properly interpreted in the context in which s. 47.1 and the 1998

amendments were adopted and the object underlying their enactment,

as well as the intention of Parliament, the ordinary sense of the broad

wording employed in s. 47.1 demonstrates that the Minister is

obligated to consult with the CWB and to hold a producer vote prior

to causing to be introduced in Parliament a bill that alters the CWB’s

exclusive marketing mandate; by causing the Bill to be introduced,

the Minister breached his statutory duty.

(Applicants’ Memorandum of Fact and Law in T-1735-11, para. 45)

[19] Thus, to the Applicants, history is important. The Act was first introduced in 1935, and in

1943 the CWB became a “Single Desk” which means the CWB became the sole marketing agency

for western Canadian wheat. This authority was extended to oats and barley in 1949, though the

marketing of oats was subsequently removed from the CWB’s exclusive jurisdiction in 1989.

Throughout this period government-appointed Commissioners managed the CWB; however, in

Page: 11

1998, legislative amendments were introduced to improve the CWB’s marketing mandate and

structure to introduce democratic governance and greater accountability. The amendments

transferred control of the CWB to the farmers by creating a board of directors. Since 1998, twothirds

of the members of the board are elected directly by the grain producers. Section 47.1 was also

implemented at that time.

[20] Based on the historical context, the Applicants make the following arguments with respect

to the purpose of s. 47.1 and the scheme and the object of the Act :

In this case, the 1998 Amendments and section 47.1 were adopted in

response to increasing calls for greater farmer control over the

CWB’s operations and marketing mandate, including the demands of

some for dual marketing.

The creation of the Board, the majority of which was farmer-elected,

and the adoption of section 47.1 were in response to “the reasonable

expectations of a majority of western grain producers” and were

aimed at empowering farmers. The purpose of section 47.1 was to

ensure that “producers should be in control of any future changes to

the [CWB’s] mandate”.

[…]

The bill creates a dual marketing system in which Part IV, containing

the prohibitions on the export or interprovincial sale of wheat and

barley, is repealed, but the CWB remains as a purchaser of grain.

Section 47.1 was enacted by Parliament to ensure that the Minister

consulted with the Board and with producers prior to introducing

legislation to implement this very system.

[…]

The purpose of the 1998 Amendments is clear. The consistent

themes underlying the amendments were democracy, accountability,

flexibility and empowerment for farmers. Similarly, the purpose of

section 47.1 was to ensure that “farmers, not government, would be

in control of any future change to the [CWB’s] marketing authority”,

including the implementation of dual marketing and the elimination

of the Single Desk.

Page: 12

(Applicants’ Memorandum of Fact and Law in T-1735-11, paras. 47-

48, 50, and 58)

[21] With respect to the intention of Parliament in introducing s. 47.1, from the body of evidence

presented by the Applicants, I find the following statements of the former Minister responsible for

the CWB to be particularly cogent:

House of Commons, October 7, 1997:

Virtually every marketing innovation which farmers have debated

over the past several years will be possible under this new law. In a

nutshell, that is what Bill C-4 is all about, empowering producers,

enshrining democratic authority which has never existed before,

providing new accountability, new flexibility and responsiveness,

and positioning farmers to shape the kind of wheat board they want

for the future (Affidavit of Allen Oberg, September 15, 2011, para.

38, Exhibit 7);

House of Commons, February 17, 1998:

Such a change would have eliminated the problematic clauses while

respecting and enshrining the fundamental principle of democratic

producer control;

[…]

Tonight, at long last, Bill C-4 will come to a vote at third reading. Its

passage will signal an era of change for the future. Its major themes

are democracy, accountability, flexibility and empowerment for

farmers.

Farmers will take control. They will have it within their authority to

shape their marketing agency as they see fit. I have complete

confidence in the judgment of producers to exercise their new

authority with strength, wisdom and prudence to the greater and

greater success of the prairie farm economy and prairie farmers most

especially (Affidavit of Allen Oberg, September 15, 2011, para. 40,

Exhibit 9);

Senate Committee, May 5, 1998:

Page: 13

The amendment would require that if any future minister responsible

for the [CWB] decides that it is appropriate public policy to change

the mandate of the [CWB], to make it either bigger or smaller, it

would be up to him to make that policy determination. But he would

be required to conduct a vote in advance to obtain the consent of

farmers (Affidavit of Allen Oberg, September 15, 2011, para. 42,

Exhibit 11).

[Emphasis in the original]

[22] In addition, the Former Minister repeatedly confirmed that s. 47.1 requires a Producer vote

if a proposed change is “significant or fundamental”:

Policy Statement, “Changes in Western Grain Marketing”, October

7, 1996:

The proposed legislation will provide for future mandate changes

contingent upon the formal considered advice of the CWB board of

directors and, if a quality control issue is involved, the formal

certification by the Canadian Grain Commission that a change can in

fact be made without jeopardizing the world-renowned Canada

reputation for high quality, consistency and dependability. If the

CWB directors consider any proposed change to be significant or

fundamental, a producer vote would be a prerequisite before

implementation [Emphasis added] (Record of the CWB, Tab 3, p.

112);

Standing Committee on Agriculture and Agri-Food, Meeting No. 57,

December 12, 1996:

In future the Wheat Board’s mandate may be adjusted, conditional

upon three things: first of all, a clear recommendation to that effect

by the directors of the Canadian Wheat Board; secondly, if a quality

control issue is involved, the unequivocal concurrence of the

Canadian Grain Commission that a change can be made safely

without damaging Canada’s reputation for quality and consistency;

and third, if the proposed change is significant or fundamental, then

an affirmative vote among farmers would need to be a prerequisite

[Emphasis added] (Record of the CWB, Tab 4, p. 125).

[23] The Council submits that the intention of Parliament can be evidenced by the invocation of

international trade obligations as a rationale for the 1998 Amendments by the Former Minister. The

Page: 14

democratic nature of s. 47.1, which mandates producer control, was considered necessary in order to

defend the CWB’s marketing practices in the face of the NAFTA. The Former Minister stated that

s. 47.1 was intended to prevent the Act from being “used as some thinly veiled excuse by our

competitors, perhaps the United States, to launch some form of trade harassment” (House of

Commons, February 17, 1998; Affidavit of Allen Oberg, September 15, 2011, Exhibit 9; Council

Memorandum of Fact and Law, paras. 8-14).

[24] The Council effectively argues that, when in doubt, statutory interpretation must have regard

to democratic and constitutional values. In the present case this is especially important because s.

47.1 speaks to the unique situation in which these democratic values are already implemented in the

structure of the CWB. This fact requires that, in proposing that a fundamental change be made to

the structure, the Minister must act democratically. This is what s. 47.1 says. Not adhering to these

values is not only disrespectful, it is contrary to law.

C. The Minister’s Response

[25] The Minster advances the following statutory interpretation argument:

The Applicants contend that section 47.1 should be read expansively

in such a way as to require the Minister to seek and to obtain a

favourable producer vote before being allowed to introduce any bill

“that alters the CWB’s exclusive marketing mandate.” In an

affidavit filed by the CWB in these proceedings, the Chair of its

board of directors states the CWB position as being “ […] simply

that farmers, not the government, should decide the future of the

Single Desk in a vote held in accordance with section 47.1 of the

Act.”

The clear wording of the section 47.1, however, refers only to the

addition or subtraction of particular grains or types of grain from the

marketing regime as it is established in Parts III and IV of the Act. It

does not refer to limiting the future repeal of the Act itself or to any

Page: 15

other changes. It leaves the future of the “single desk” as a matter for

Parliament to decide.

Section 47.1 is found in Part V under the heading, “OTHER GRAINS

– APPLICATION OF PARTS III AND IV,” which means that, not

only in its wording but in its statutory context as well, it is clearly

directed only to the addition or subtraction of particular grains in

Parts III and IV. The future of the “single desk” is a policy and

legislative decision for Parliament, not for the Court.

[…]

Properly interpreted, the scope of section 47.1 addresses the

inclusion or exclusion of particular grains or types of grain. Given

the principle of Parliamentary sovereignty, section 42(1) of the

Interpretation Act, and the clear wording of section 47.1 found under

the statutory heading “OTHER GRAINS – APPLICATION OF

PARTS III AND IV”, this provision cannot be so broadly interpreted,

as urged by the Applicants, as to place a perpetual veto in the hands

of each category of grain producers over the continued existence of

the marketing regime, or on the repeal of the Act itself.

Understanding the crucial distinction between removing types of

wheat or barley from the application of Part IV of the Act and

repealing the entire Act itself is fundamental to the correct

interpretation of section 47.1. Bill C-18 does not remove a particular

type of prairie wheat or barley from the application of Part IV of the

Act. Rather, Bill C-18 repeals the Act, thereby terminating the

CWB’s marketing monopoly in order to replace it with a new regime

that allows all grain producers the freedom to market and sell their

grain as they choose, including through the CWB if they so decide.

[Emphasis in original]

[Footnote removed]

(Respondents’ Consolidated Memorandum of Fact and Law, paras.

31-33; 38-39)

[26] The Minister relies upon the following evidentiary statements in support of the interpretation

argument:

a. A government news release issued in September 1997 concerning the

then Bill C-4 (into which section 47.1 was eventually added in the

Page: 16

course of Parliamentary deliberations) stated that the concept of

farmer control was directed to the potential exclusion or inclusion of

various types of grains into the system (Affidavit of Allen Oberg,

September 15, 2011, Exhibit 6);

b. The Minister, at second reading in the House of Commons of the

Bill containing section 47.1, stated that:

[t]his new law will also empower producers to

determine democratically what is and what is not

under the Canadian Wheat Board’s marketing

jurisdiction.

[Emphasis in original]

(Affidavit of Allen Oberg, September 15, 2011, Exhibit 7);

c. Clauses 23 and 26 of Bill C-4 show that the arrangements for

exclusion and inclusion of grains would take place by regulation. It is

clear that changes such as the abolition of the “single desk” or the

repeal of the Act in the future were not the type of changes to which

the new provisions were intended to apply (Affidavit of Allen Oberg,

September 15, 2011, Exhibit 8);

d. Commenting on an amendment to the bill that would become section

47.1, the Minister testified before the Standing Senate Committee on

Agriculture and Forestry on May 5, 1998. The Minister referred to

the inconsistency that had historically marked the methods by which

inclusions and exclusions of various grains, such as oats and barley,

had previously taken place – sometimes by Order in Council and

sometimes by statutory amendment. When the Minister stated, “…it

is unclear how one goes about amending the jurisdiction of the

Canadian Wheat Board”, he had in mind the problem of moving

various grains in or out of the regime that the CWB administered. He

was not referring to more fundamental changes to the nature or

existence of the marketing regime itself (Affidavit of Allen Oberg,

September 15, 2011, Exhibit 11);

e. When the Secretary of State moved second reading in the House of

Commons and concurrence in the amendments made in the Senate to

Bill C-4, including the clause that is now section 47.1, the Secretary

of State stated:

The second area of Bill C-4 where the Senate has

proposed amendments concerns the means by which

Page: 17

the number of grains under the marketing regime of

the wheat board can be either expanded or reduced.

As originally, drafted, western Canadian producers

had a process for excluding any kind, type, class or

grade of wheat or barley from the marketing authority

of the board. Similarly, the bill also laid out an

inclusion process for adding crops to the mandate of

the wheat board.

The amendment filled a gap in the existing Wheat

Board Act. As it now stands under the Canadian

Wheat Board, the process for changing the Canadian

Wheat Board’s mandate is unclear, as every member

from prairie Canada I am sure knows.

There have been concerns expressed by producers

and producer groups about the mechanism for

inclusion and exclusion originally laid out in Bill C-4.

Plenty of concerns have been expressed.

I am sure my colleagues from the opposition party are

going to get up very shortly and tell me why the

matter has not been set right yet.

The amendment responds to those concerns. The

amendment would replace existing clauses related to

the inclusion-exclusion of grains with the provision

that would require the current and future ministers

responsible for the board to consult the board of

directors with its two-thirds majority of farmer

chosen members and conduct a vote among

producers before any grains are added or removed

from the mandate of the board.

(Affidavit of Allen Oberg, September 15, 2011, Exhibit 12)

[Emphasis in Original]

(Respondents’ Consolidated Memorandum of Fact and Law, para.

47)

Page: 18

D. Conclusions

[27] I find that by applying the interpretation test as set out above, the Applicants’ argument

which relies upon a contextual historical approach with respect to the unique democratic nature of

the CWB, and its importance, is compelling. I accept the argument that the CWB’s democratic

marketing practices are “significant and fundamental” because they are long standing, and strongly

supported by a large number of the some 17,000 grain producers in Western Canada. This support is

worthy of respect; the following argument on the rule of law made by the Council makes this clear:

The rule of law is a multi-faceted concept, conveying “a sense of

orderliness, of subjection to known legal rules and of executive

accountability to legal authority.” The Courts have repeatedly

described the rule of law as embodying the principle that the law “is

supreme over officials of the government as well as private

individuals, and thereby preclusive of the influence of arbitrary

power.” In other words, for political action to be legitimate, decisionmaking

must operate within the constraints of the law. Governments

cannot flout the law and must respect legitimate legal processes

already in place. As the Supreme Court stated in the Secession

Reference, “[i]t is the law that creates the framework within which

the “sovereign will” is to be ascertained and implemented. To be

accorded legitimacy, democratic institutions must rest, ultimately, on

a legal foundation.”

Adhering to the rule of law ensures that the public can understand the

rules they are bound by, and the rights they have in participating in

the law-making process. As the Applicants note, western farmers

relied on the fact that the government would have to conduct a

plebiscite under s. 47.1 before introducing legislation to change the

marketing mandate of the CWB. Disregarding the requirements of s.

47.1 deprives farmers of the most important vehicle they have for

expressing their views on the fundamental question of the single

desk. Furthermore the opportunity to vote in a federal election is no

answer to the loss of this particular democratic franchise. Until the

sudden introduction of Bill C-I8, Canadian farmers would have

expected the requirements of s. 47.1 to be respected.

The rule of law must therefore inform the interpretation of s. 47.1,

which sets out a process that includes consultation and a democratic

vote prior to abolishing the single desk. An interpretation of s. 47.1

Page: 19

that is consistent with the rule of law would give effect to the plain

meaning of its words as ordinary citizens would understand and

interpret them, and not in a manner that defeats the consultative

purpose of s. 47.1 — particularly, given that citizens and

stakeholders understood s. 47.1 to provide them with particular rights

and acted in accordance with that understanding.

[Footnotes excluded]

(Memorandum of Fact and Law of the Council, paras. 26-28)

[28] I give 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. I find that this is an important consideration which supports the argument that

Parliament’s intention in s. 47.1 is not to alter this structure without consultation and consent.

[29] However, the Applicants’ statutory interpretation, which I accept, should not be considered

to the exclusion of the Minister’s interpretation which focuses on the words used in s. 47.1 itself. In

my opinion, the correct interpretation of the provision includes both perspectives. In my opinion, to

accept the Minister’s interpretation to the exclusion of the Applicants’ would results in an absurdity,

a condition which is to be avoided.

[30] By construing the liberal interpretation of the 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

Page: 20

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)

[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.

VI. Legitimate Expectations

[32] As an alternative argument, the Applicants maintain that the Minister has failed to meet

legitimate expectations. The Supreme Court of Canada describes a legitimate expectation as

follows:

It affords a party affected by the decision of a public official an

opportunity to make representations in circumstances in which there

would be no such opportunity. The court supplies the omission

where, based on the conduct of the public official, a party has been

led to believe that his or her rights would not be affected without

consultation.

(Old St Boniface Residents Association Inc v Winnipeg (City), [1990]

3 SCR 1170, at para. 110)

During the course of oral argument, the Applicants confirmed that, should they be successful on the

s. 47.1 breach argument, they would be content with that as the single result of the Applications.

Therefore, I exercise my discretion not to grant the Legitimate Expectation Declaration requests.

Page: 21

VII. Conclusion

[33] The Minister argues that the declarations should not be granted because their effect would

be meaningless. In response, I say that there are two meaningful effects of granting the Breach

Declarations.

[34] The first effect is that a lesson can be learned from what has just occurred. Section 47.1

speaks, it says: “engage in a consultative process and work together to find a solution.” The change

process is threatening and should be approached with caution. Generally speaking, when advancing

a significant change to an established management scheme, the failure to provide a meaningful

opportunity for dissenting voices to be heard and accommodated forces resort to legal means to

have them heard. In the present piece, simply pushing ahead without engaging such a process has

resulted in the present Applications being launched. Had a meaningful consultative process been

engaged to find a solution which meets the concerns of the majority, the present legal action might

not have been necessary. Judicial review serves an important function; in the present Applications

the voices have been heard, which, in my opinion, is fundamentally importantly because it is the

message that s. 47.1 conveys.

[35] The second and most important effect is that the Minister will be held accountable for his

disregard for the rule of law.

[36] I find it is fair and just to issue the Breach Declaration on each Application.

“Douglas R. Campbell”

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKETS: T-1057-11 and T-1735-11

STYLE OF CAUSE: T-1057-11

FRIENDS OF THE CANADIAN WHEAT BOARD, ET

AL. v. ATTORNEY GENERAL OF CANADA, ET AL.

and COUNCIL OF CANADIANS, ET AL. (Interveners)

T-1735-11

THE CANADIAN WHEAT BOARD, ET AL. v. THE

MINISTER OF AGRICULTURE AND AGRIFOOD IN

HIS CAPACITY AS MINISTER RESPONSIBLE FOR

THE CANADIAN WHEAT BOARD and PCSC –

PRODUCER CAR SHIPPERS OF CANADA INC.

(PRODUCER CAR SHIPPERS), ET AL. (Interveners)

PLACE OF HEARING: Winnipeg, Manitoba

DATE OF HEARING: December 6, 2011

REASONS FOR ORDER: CAMPBELL J.

DATED: December 7, 2011

APPEARANCES:

Anders Bruun

FOR THE APPLICANTS

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 AND

RENE SAQUET

(IN T-1057-11)

Page: 2

Joel Katz FOR THE RESPONDENTS

ATTORNEY GENERAL OF CANADA, THE

MINISTER OF AGRICULTURE AND AGRIFOOD

IN HIS CAPACITY AS MINISTER RESPONSIBLE

FOR THE CANADIAN WHEAT BOARD

(IN T-1057-11)

John Lorn McDougall, Q.C. and

Matthew Fleming

Stephen Shrybman

John Lorn McDougall, Q.C. and

Matthew Fleming

James E. McLandress

Joel Katz

John B. Martens and

Colin R. MacArthur, Q.C.

FOR THE RESPONDENT

THE CANADIAN WHEAT BOARD

(IN T-1057-11)

FOR THE INTERVENERS

COUNCIL OF CANADIANS, ETC GROUP

(ACTION GROUP ON EROSION, TECHNOLOGY

AND CONCENTRATION), PUBLIC SERVICE

ALLIANCE OF CANADA AND FOOD SECURE

CANADA

(IN T-1057-11)

FOR THE APPLICANTS

THE CANADIAN WHEAT BOARD, ALLEN

OBERG, ROD FLAMAN, CAM GOFF, KYLE

KORNEYCHUK, JOHN SANDBORN, BILL

TOEWS, STEWART WELLS AND BILL WOODS

(IN T-1735-11)

FOR THE APPLICANTS

(IN T-1735-11)

FOR THE RESPONDENTS

THE MINISTER OF AGRICULTURE AND

AGRIFOOD IN HIS CAPACITY AS MINISTER

RESPONSIBLE FOR THE CANADIAN WHEAT

BOARD

(IN T-1735-11)

FOR THE INTERVENERS

PCSC – PRODUCER CAR SHIPPERS OF

CANADA INC. (PRODUCER CAR SHIPPERS),

LOGAN CONNOR, LEONARD GLUSKA, BILL

WOODS, MYRON FINLAY, HOWARD VINCENT,

GLEN HARRIS, AND TIM COULTER, ON THEIR

OWN BEHALF AND ON BEHALF OF THE

MEMBERS OF PRODUCER CAR SHIPPERS

(IN T-1735-11)

Page: 3

SOLICITORS OF RECORD:

Anders Bruun

Barrister & Solicitor

Winnipeg, Manitoba

FOR THE APPLICANTS

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 AND

RENE SAQUET

(IN T-1057-11)

Myles J. Kirvan, Q.C.

Deputy Attorney General of Canada

FOR THE RESPONDENTS

ATTORNEY GENERAL OF CANADA, THE

MINISTER OF AGRICULTURE AND AGRIFOOD

IN HIS CAPACITY AS MINISTER RESPONSIBLE

FOR THE CANADIAN WHEAT BOARD

(IN T-1057-11)

FOR THE RESPONDENTS

THE MINISTER OF AGRICULTURE AND

AGRIFOOD IN HIS CAPACITY AS MINISTER

RESPONSIBLE FOR THE CANADIAN WHEAT

BOARD

(IN T-1735-11)

Fraser Milner Casgrain LLP

Barristers & Solicitors

Toronto, Ontario

James E. McLandress

Barrister & Solicitor

Winnipeg, Manitoba

FOR THE RESPONDENT

THE CANADIAN WHEAT BOARD

(IN T-1057-11)

FOR THE APPLICANTS

THE CANADIAN WHEAT BOARD, ALLEN

OBERG, ROD FLAMAN, CAM GOFF, KYLE

KORNEYCHUK, JOHN SANDBORN, BILL

TOEWS, STEWART WELLS AND BILL WOODS

(IN T-1735-11)

FOR THE APPLICANTS

THE CANADIAN WHEAT BOARD, ALLEN

OBERG, ROD FLAMAN, CAM GOFF, KYLE

KORNEYCHUK, JOHN SANDBORN, BILL

TOEWS, STEWART WELLS AND BILL WOODS

(IN T-1735-11)

Page: 4

Sack Goldbatt Mitchell LLP

Barristers & Solicitors

Ottawa, Ontario

Aikins MacAulay & Thorvaldson LLP

Barristers & Solicitors

Winnipeg, Manitoba

FOR THE INTERVENERS

COUNCIL OF CANADIANS, ETC GROUP

(ACTION GROUP ON EROSION, TECHNOLOGY

AND CONCENTRATION), PUBLIC SERVICE

ALLIANCE OF CANADA AND FOOD SECURE

CANADA

(IN T-1057-11)

FOR THE INTERVENERS

PCSC – PRODUCER CAR SHIPPERS OF

CANADA INC. (PRODUCER CAR SHIPPERS),

LOGAN CONNOR, LEONARD GLUSKA, BILL

WOODS, MYRON FINLAY, HOWARD VINCENT,

GLEN HARRIS, AND TIM COULTER, ON THEIR

OWN BEHALF AND ON BEHALF OF THE

MEMBERS OF PRODUCER CAR SHIPPERS

(IN T-1735-11)

Privacy and Online Behavioural Advertising the Office of the Privacy Commissioner of Canada,

Privacy and Online Behavioural Advertising

 PDF Version

Online behavioural advertising involves tracking consumers’ online activities over time in order to deliver advertisements targeted to their inferred interests. Behavioural advertisers often use sophisticated algorithms to analyze the collected data, build detailed personal profiles of users, and assign them to various interest categories. Interest categories are used to present ads defined as relevant to users in those categories.

While advertising may help subsidize the delivery of free online content desired by most users, it is nevertheless essential that online advertising practices respect an individual’s privacy rights and consent choices.

Online behavioural advertising may be considered a reasonable purpose under thePersonal Information Protection and Electronic Documents Act (PIPEDA), provided it is carried out under certain parameters, and is not made a condition of service.

The following guidelines were developed to help the various types of organizations involved in online behavioural advertising ensure that their practices are fair, transparent and in compliance with PIPEDA. Any future complaints concerning online behavioural advertising would be assessed based on the specific facts of each individual case.

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PIPEDA and Personal Information

PIPEDA defines personal information as “information about an identifiable individual”. Information will be about an identifiable individual where there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information.

A prominent strategic element of online behavioural advertising comes from the tailoring of advertisements based on an individual’s browsing activities, which could include purchasing patterns and search queries. Given the scope and scale of information collected, the powerful means available for aggregating disparate pieces of data and the personalized nature of the activity, it is reasonable to consider that there will often be a serious possibility that the information could be linked to an individual.

As such, we take the position that the information involved in online tracking and targeting for the purpose of serving behaviourally targeted advertising to individuals will generally constitute personal information.

PIPEDA and User Choice

PIPEDA requires an individual’s knowledge and consent for the collection, use, or disclosure of personal information. PIPEDA also requires that the purposes for which an individual’s information is to be collected, used or disclosed be explained in a clear and transparent manner. In addition, PIPEDA does recognize that the form of consent can vary: for example, express consent (opt-in) when dealing with sensitive information, and implied consent (opt-out) when the information is less sensitive. It is important to note that the sensitivity of information depends on the nature of the information and the context in which it is being collected, used or disclosed.

While obtaining consent in the online environment is not without its challenges, it is possible. Opt-out consent for online behavioural advertising could be considered reasonable providing that:

• Individuals are made aware of the purposes for the practice in a manner that is clear and understandable – the purposes must be made obvious and cannot be buried in a privacy policy. Organizations should be transparent about their practices and consider how to effectively inform individuals of their online behavioural advertising practices, by using a variety of communication methods, such as online banners, layered approaches, and interactive tools;
• Individuals are informed of these purposes at or before the time of collection and  provided with information about the various parties involved in online behavioural advertising;
• Individuals are able to easily opt-out of the practice - ideally at or before the time the information is collected;
• The opt-out takes effect immediately and is persistent;
• The information collected and used is limited, to the extent practicable, to non-sensitive information (avoiding sensitive information such as medical or health information); and
• Information collected and used is destroyed as soon as possible or effectively de-identified.

Restrictions

Inability to Decline

Any collection or use of an individual’s web browsing activity must be done with that person’s knowledge and consent. Therefore, if an individual is not able to decline the tracking and targeting using an opt-out mechanism because there is no viable possibility for them to exert control over the technology used, or if doing so renders a service unusable, then organizations should not be employing that type of technology for online behavioural advertising purposes. At present, this could include, for example, so-called zombie cookies, super cookies and device fingerprinting. Further information related to online tracking technologies can be found on our Web Tracking with Cookies fact sheet.

Tracking of Children

PIPEDA requires meaningful consent for the collection, use and disclosure of personal information. It is difficult to ensure meaningful consent from children to online behavioural advertising practices. Therefore, as a best practice, organizations should avoid tracking children and tracking on websites aimed at children.

Addressing the Challenges

By putting in place privacy-sensitive frameworks, organizations will promote consumer trust in their online activities.  Addressing the privacy concerns raised by online behavioural advertising is central to establishing and maintaining consumer confidence in the online world.

Related OPC Documents

The OPC has a number of related resources available on our website:

• OPC 2010 Consumer Consultations
• Online privacy guidance documents
• Behavioural advertising fact sheets
• Web Tracking with Cookies