T-2191-04: Affidavit of Peter S. Eckersley

File No: T-2191-04

The Federal Court Trial Division

Between:

Arthur Mainil (Plaintiffs)

-and-

The Canadian Wheat Board and Meyers Norris Penny LLP (Defendants)

Affidavit of Peter S. Eckersley

I, Peter S. Eckersley, of the City of Brandon, in the Province of Manitoba, make oath and say that:

  1. As the partner for the Defendant, Meyers Norris Penny LLP who was in charge of the handling of the Canadian Wheat Board Elections in 2004, I have personal knowledge of the facts and matters deposed to herein by me, except where the same were stated to based upon information or belief in which case I believe them to be true. This affidavit is supplementary to my affidavit of December 10, 2004, filed in this matter.
     
  2. I have read the Affidavit of Tom Jackson accompanying his Notice of Motion for intervener status in the matter of Arthur Mainil and the Canadian Wheat Board and Meyers Norris Penny LLP.
     
  3. I have also read the written representations of Tom Jackson.
     
  4. Mr. Jackson was a candidate for the position of director of the Canadian Wheat Board in District 4 in the year 2000.
     
  5. Exhibit "A" to Mr. Jackson's written Submissions, the District Transfer Request Form was prepared by me for the 2000 election. I prepared that form using as a precedent form used by the accounting firm KPMG for the 1998 Wheat Board Election. The form used in the 2002 Election was modified slightly from the form used in the 2000 Election and the form used in the 2002 Election is identical to the form used 2004 with the exception that the dates have changed.
     
  6. The Statutory Declaration form used in 2004 is the same as that used in 2002 and is substantially the same as that used in 2000.
     
  7. Mr. Jackson was sent copies of both forms along with the "2004 Election-Candidates Reference Guide" which was sent to all potential candidates upon request. Mr. Jackson phoned in a request for his package on or about September 20, 2004 and he was provided with that documentation immediately thereafter.
     
  8. Our interpretation of the words "produce grain" and "grow grain" have not changed in the last four years and were used in the 2000, 2002 and 2004 election. Mr. Jackson had access to this information since at least the year 2000 in his capacity as a candidate in the 2000 and 2004 Elections.
     
  9. Mr. Jackson should have known this was the interpretation we were applying from at least the beginning of the 2004 Election and possibly as early as the year 2000.
     
  10. A "producer" is distinct from a "permit holder". Although, a permit holder may also be a producer, a producer need not hold a permit in order to be eligible to vote in the Wheat Board Election.
     
  11. The statutory declaration may be filed by producers who do not hold permits, or producers who were issued permits after the final voters list was prepared in October 2004, as their names would not have appeared on that list.
     
  12. The Election system provides for staggered terms such that half of the ten elected directors are elected every two years. The intent behind the regulation is to ensure that each producer gets to vote for a director once every four years. There are situations where producers reside in a different district from which they actually grow their grain, or delivery their grain in a district different from where they reside. Accordingly, the producers are entitled to choose which district they wish to vote in but are not permitted to switch districts every two years. Producers may change districts if they no longer own land in the district that they reside in. For example, if a producer owned land in Districts 9 and 10 in 2000 and filed a change of district form in 2000 selecting District 10, the producer would not be entitled to change to District 9 in 2002. The voter would also not be able to change to District 9 in 2004 (even though there was no election in that district) unless the producer had sold his land in District 10.
     
  13. In November of 2004 we sent by Expresspost, ballots to districts 4, 6 and 8 as approximately 628 voters from these Districts had been omitted from the final voter's list. The 628 ballots were sent to Districts 4, 6 and 8 by Expresspost with the last of the ballots being sent November 25, 2004. I have been advised by Canada Post and do verily believe that the normal delivery time for an Expresspost envelope is 2-5 working days anywhere in Canada. The last Expresspost envelope was sent out on November 25, 2004. Accordingly, an envelope sent out on November 25, 2004 should have arrived at the recipient's mailbox on or before December 3, 2004.
     
  14. I make this Affidavit bona fide.

Sworn before me at the City of Brandon, in the Province of Manitoba this 17th day of December, 2004.
(Signed by a Notary Public in and for the Province of Manitoba)

(Signed by Peter S. Eckersley)