Citation: 2004 FC 1768
Ottawa, Ontario, December 23, 2004
THE HONOURABLE MADAM JUSTICE MACTAVISH
ARTHUR MAINIL (Applicant)
- and -
THE CANADIAN WHEAT BOARD AND MEYERS NORRIS PENNEY (Respondents)
- and -
TOM JACKSON AND ROD FLAMAN (Interveners)
REASONS FOR ORDER AND ORDER
- Arthur Mainil is a candidate in an election
for directors of the Canadian Wheat Board (CWB). The election is being
run by the CWB and Meyers Norris Penny LLP (MNP), a chartered
accountancy firm retained by the CWB to act as Election Co-ordinator.
The CWB and MNP are the respondents in this application.
- Mr. Mainil alleges that there were a number
of irregularities in the electoral process. As a result, he seeks to
enjoin the CWB and MNP from counting the ballots and announcing the
results of the election until such time as the electoral process can
be judicially reviewed.
- Tom Jackson and Rod Flaman are also
candidates in the same election, Mr. Flaman in the same district as
Mr. Mainil, and Mr. Jackson in a different district. Mr. Jackson
supports Mr. Mainil's position, whereas Mr. Flaman supports the CWB
and MNP. Both individuals were given leave to intervene in the motion
for an injunction, on the basis that their representations had to be
limited to the issues identified by the parties themselves.
The Structure of
the Canadian Wheat Board
- The CWB was created pursuant to the Canadian
Wheat Board Act (the Act). It is responsible for the sale and
marketing of all wheat, including durum wheat, feed barley and barley
intended for human consumption that is produced in Manitoba,
Saskatchewan, Alberta and the Peace River district of British Columbia
for both domestic and export purposes.
- The CWB has the exclusive 'single-desk'
authority to market these grains for export from Canada and for human
consumption within Canada. It markets approximately 20,000,000 tonnes
of grain a year, to some 70 countries around the world, generating
annual revenues of some $4 - 6 billion. These revenues are returned to
the producers, net of operating expenses.
- A producer who wishes to sell grain through
the CWB system in a given crop year (August 1 to July 31) is required
to apply for a Permit. The producer is then issued a Permit Book,
which is used to record all of the producer's dealings with the CWB.
In the 2003-2004 crop year, there were approximately 75,000 Permit
- The CWB is governed by a 15 member Board of
Directors. Five members of the Board are appointed by the federal
government, and ten are elected by grain producers. The elected
directors are each elected for a four-year term. The directors' terms
are staggered, such that five
directors are elected every two years.
- This Application relates to the election held
in the Fall of 2004 for Electoral districts 2, 4, 6, 8 and 10. The
terms of the current directors from these districts will expire on
December 31, 2004.
- The process to be followed in the election of
directors for the CWB is set out in the Regulations Respecting the
Election of Directors of the Canadian Wheat Board (the Regulations).
The Regulations contemplate the hiring of an Election Co-ordinator to
conduct the election of directors, and to ensure that the elections
are carried out in a fair and impartial fashion, in accordance with
the Act and the Regulations. In this case, the CWB hired the Brandon
office of MNP.
- The Regulations stipulate that the Election
Co-ordinator shall fix the dates for the election period, including
the date on which nominations close. The Election Co-ordinator is also
responsible for the compilation of a voters list.
- CWB directors are chosen by grain
"Producers". "Producers" is a defined term in the
Act, and includes "actual producers" - those who actually
produce grain, as well as persons entitled to the grain grown by
actual producers, whether as landlord, vendor or mortgagee.
- Producers who produce grain in an electoral
district are entitled to vote in that electoral district. In the event
that a producer produces grain in more than one district, the producer
is entitled to select one district in which to vote, but may not vote
in more than one district.
- The Regulations stipulate that no later than
60 days before the last day of the election period, the CWB shall
provide the Election Co-ordinator with a list of producers who are
named in a Permit Book on the day that the list is sent or who were
named in a Permit Book during the previous crop year.
- No less than 30 days before the last day of
the election period, the Election Co-ordinator is required to make the
list of the voters in each electoral district publicly available, and
to provide each candidate with a copy of the list of the voters in the
candidate's electoral district.
- Any producer whose name is not included on
the voters list may, no less than 14 days before the last day of the
election period, ask the Election Co-ordinator to add the producer's
name to the voters list, subject to the producer providing proof of
his or her identity and eligibility.
- Under section 17 of the Regulations, the
Election Co-ordinator is required to mail a ballot to each voter on
the voters list no less than 25 days before the last day of the
- Voters vote by mail, and to be counted,
completed ballots must be postmarked on or before the last day of the
- The CWB retained the Brandon, Manitoba,
office of MNP to act as Education Co-ordinator in the 2004 Directors'
election. MNP had experience in this area, having co-ordinated the
2000 and 2002 Directors' elections.
- MNP fixed the election period to begin on
September 7, 2004 and to end on December 3, 2004. September 7 was also
set for the opening of nominations, with nominations set to close on
October 25, 2004.
- On August 20, 2004, the CWB provided MNP with
a preliminary list of producers in electoral districts 2, 4, 6, 8 and
10. According to the affidavit of Deborah Harri, the corporate
secretary of the CWB, this list was intended to include all producers
who were named in Permit Books issued in the 2003-2004 and 2004-2005
- Ms. Harri further deposes that the list was
generated using a computer program developed to extract data with
respect to all producers holding Permit Books in the last two crop
years. Although the CWB was not aware of it at the time, the program
did not retrieve data on some 1050 producers holding valid Permit
Books for the 2003-2004 crop year, who had not sold grain to the CWB
in the last two years. These individuals will be referred to as the
- There were other problems with the data
provided by the CWB, including producers being assigned to the wrong
- A preliminary voters list was made public by
MNP on September 10, 2004. This list was provided to candidates as
they were nominated, and was made available for viewing in the MNP
offices in each voting district. The process for producers left off
the list to have themselves added to the lists was also widely
- Nominations closed on October 25, 2004. The
candidate in District 2 was acclaimed, with the result that elections
were only required in Districts 4, 6, 8 and 10.
- Between September 10 and November 1, 2004, a
number of changes were made to the list as further errors were
identified, and additional producers came forward to have themselves
added to the list. On November 1, 2004, MNP mailed approximately
46,700 ballots to the producers on the voters list as it then stood.
- As a result of an inquiry received by MNP on
November 19, 2004, from a Permit Book holder who was not on the voters
list, the CWB carried out an investigation into the matter. On
November 22, 2004, the CWB realized that the computer program being
used to identify Permit Book holders had not included the Omitted
Producers. As a result, the Omitted Producers had not received
- A list of 1000 of the Omitted Producers was
provided to MNP on November 23, 2004, and a further list of 50 more
Omitted Producers was forwarded to MNP on November 25, 2004. MNP and
the CWB then agreed that ballots should be distributed to the Omitted
Producers, which was done between November 24 and November 26, 2004.
In the case of Omitted Producers outside of Manitoba, ballots were
sent by Express Post. For the Omitted Producers within Manitoba, the
ballots were sent by regular mail.
- Somewhere between approximately 8,000 and
14,000 ballots were distributed in each of the voting Districts. The
Omitted Producers were relatively evenly distributed amongst the
various voting Districts, with the result that there were
approximately 200 Omitted Producers in each District.
- MNP evidently considered whether the December
3 deadline for submitting ballots should be extended, given the late
distribution of the ballots to the Omitted Producers, but ultimately
decided that an extension was not necessary.
- Voters are provided with a coloured envelope
in which the completed ballot is to be returned. The colour of the
envelope relates to the district to which the vote pertains. Each
envelope also bears a bar code. A record was kept by MNP of the
ballots sent to the Omitted Producers, so that these ballots could be
identified and segregated, in the event that it was subsequently
determined that there was a problem with the way that this matter was
- The election period ended on December 3,
2004. Using the colour-coded envelopes, MNP has now sorted the
unopened ballots by electoral district, but as a result of this
proceeding, none of the ballots have yet been opened. MNP now intends
to count the ballots on December 29, 2004, under the supervision of
scrutineers appointed pursuant to the Regulations. The results of the
election will presumably be announced shortly thereafter.
- Mr. Mainil submits that the electoral process
was rife with irregularities. The failure of the CWB and MNP to
include the Omitted Producers on the voters list was particularly
prejudicial to candidates such as Mr. Mainil, who believes that the
current marketing system should be changed.
- The Omitted Producers were people who had not
sold grain through the CWB in the preceding two years. These
individuals, Mr. Mainil says, were more likely to have supported his
candidacy than the candidacies of his opponents.
- The CWB and MNP continued to add names to the
list up until shortly before the close of the election period. Mr.
Mainil says that, in the circumstances, it was unfair for the CWB and
MNP to refuse to allow producers coming forward less that 14 days
before the close of the
election period to be added to the list.
- According to Mr. Mainil, MNP also breached
its duty as Election Co-ordinator under the Regulations by failing to
clarify the voting procedures, and by failing to advise voters that
they did not have to rank each candidate in order of preference. He
further argues that the radio advertising spots developed by MNP,
encouraging producers to vote, were worded in such a way as to favour
the incumbent Directors to the detriment of challengers such as
- Finally, Mr. Mainil submits that in sorting
the completed ballots by district, in the absence of duly appointed
scrutineers, MNP has breached section 20 (2) of the Regulations.
- As noted earlier, Mr. Jackson supports Mr.
- The parties agree that the appropriate test
on an application for an interlocutory injunction such as this is the
tripartite test established in cases such as RJR-MacDonald Inc. v.
Canada (Attorney General)  1 S.C.R. 311.
- That is, in order to succeed, Mr. Mainil must
establish that there is a serious issue to be tried, that irreparable
harm will result if the injunction is not granted, and that the
balance of convenience favours the granting of the injunction.
- That said, counsel for the CWB submits that,
in the context of a disputed election, the threshold to be met in
establishing the existence of a serious issue is not the low threshold
usually required but one that is much higher. Counsel submits that the
burden is on Mr. Mainil to establish that there were "substantial
irregularities" in the process. According to counsel, mere
technical breaches are not "substantial irregularities".
- Further, Mr. Mainil should be required to
show that these irregularities may reasonably be said to have had a
substantial effect on the election.
- In support of this argument, the CWB relies
on the decision of the British Columbia Supreme Court in Bowering v.
I.O.U.E., Local 882, (2002) BCSC 830.
- Counsel for the CWB submits that Mr. Mainil
has failed to meet the Bowering threshold. As a result, not only
should I decline to grant the injunction, counsel submits that I
should also summarily dismiss Mr. Mainil's underlying application for
judicial review so as to avoid the CWB having to operate under a cloud
until the matter is finally resolved.
- I do not accept counsel's submissions in this
regard. A review of the Bowering case discloses that it did not
involve an application for an interlocutory injunction, but rather a
motion for summary judgment. The test referred to above was that
applied by the Court in deciding whether or not to set aside the
results of an election. That is not what I am being asked to do here.
- What I am being asked to do, on an emergency
basis, is to enjoin the CWB and MNP from counting the ballots and
announcing the election results, until such time as Mr. Mainil's
application for judicial review is heard. The threshold for the
serious issue aspect of the tripartite test for an interlocutory
injunction is not high. Indeed, as the Supreme Court of Canada noted
|Once satisfied that the application is neither
frivolous nor vexatious, the motions judge should proceed to
consider the second and third tests, even if it is of the opinion
that the plaintiff is unlikely to succeed at trial. A prolonged
examination of the merits is generally neither necessary or
desirable. (at p. 337)
- The low RJR-MacDonald threshold for the
establishment of a serious issue is the one used by this Court in the
context of contested elections (see, for example, Gopher v. Moccasin
et al, 2004 FC 1750), and will be applied here.
Mainil's Application for Judicial Review Be Dismissed on a Summary Basis?
- Assuming that I have the jurisdiction to do
so, I am also not prepared to dismiss Mr. Mainil's application for
judicial review on a summary basis. As is the situation with many
emergency injunction applications, the parties in this case have been
scrambling to put together their materials, with supplementary
affidavits being filed up until the last minute. Mr. Mainil's
application for judicial review has only just been filed, and he has
not, as yet, had an opportunity to file an application record.
- The question of whether the results of the
2004 Director's election should be set aside is a question to be
determined when Mr. Mainil's application for judicial review is
finally heard. By that time, each party will have had a proper
opportunity to put together complete records, and to cross-examine the
opposing party or parties on their affidavit material, should they
deem it appropriate to do so.
- Further, other persons with an interest in
the outcome of this proceeding, who have only recently been provided
with notice of this proceeding, will have a proper opportunity to seek
intervener status, should they wish to do so.
- In these circumstances, I see no basis for
depriving Mr. Mainil of his day in court at this stage in the
- If the CWB is concerned about the
ramifications that these proceedings may have for its ongoing ability
to operate, there is nothing to preclude it from seeking an expedited
hearing of Mr. Mainil's application for judicial review.
Is There a
Serious Issue Here?
- I have carefully considered all of Mr.
Mainil's and Mr. Jackson's submissions with respect to what they say
are the various errors committed by the CWB and/or MNP with respect to
the conduct of the 2004 Directors' election.
- It is clear that MNP is in technical breach
of section 20 (2) of the Regulations, which stipulates that:
|The Election Co-ordinator, in the presence of
independent scrutineers appointed by the Minister, shall in the
sort the ballots by electoral district ...
- It is common ground that MNP has already
sorted the ballots, by district, outside the presence of the
- I need not decide whether, by itself, this
would constitute a serious issue, as I am satisfied that a serious
issue exists with respect to the failure of the CWB and MNP to include
the Omitted Producers on the voters list.
- Section 7 (1) of the Regulations imposes a
duty on the CWB to provide the Election Co-ordinator with a list of
the producers who are named in a Permit Book on the day that the list
is sent, or who were named in a Permit Book during the previous crop
year. As a result of a problem with the computer program used to
generate the list, the CWB failed to do so here.
- The result of this error was that
approximately 200 voters in Mr. Mainil's district were not sent their
ballots at least 25 days before the close of the election period, as
required by section 17 of the Regulations. The 25-day period
presumably allows for enough time for voters to get the material,
ponder his or her choices, and return their completed ballots to the
Election Co-ordinator in a timely fashion. It also affords candidates
a period in which to contact prospective voters and to seek their
- In the case of the Omitted Producers, ballots
were mailed to these individuals approximately one week before the
close of the election period, seriously limiting the time available to
both voters and candidates to do any of these things. Further, the
affidavit of Peter Eckersley, filed on behalf of MNP, discloses that
at least some of the ballots likely did not reach voters prior to the
close of the election period.
- This is arguably more than a 'technical
breach', and in my view, constitutes a serious issue.
Harm Result if the Injunction Is Not Granted?
- Mr. Mainil submits firstly that Canadian
grain producers generally will suffer irreparable harm if the ballots
are counted and the election results announced. The entire process
will suffer a loss of respect and integrity, Mr. Mainil says, if the
election is completed in light of the flaws in the process.
- The case law is clear that on an application
for an interlocutory injunction, the question is not whether third
parties may suffer irreparable harm, but whether the individual
seeking the injunction will himself suffer such harm: see Dodge v.
Johnson, 2003 FCT 36 (FCTD).
- Insofar as Mr. Mainil himself is concerned,
he submits that if the election is allowed to proceed, and if he is
unsuccessful, he will be substantially prejudiced by the announcement
of the results, and there would be no way to remove the taint of this
election. I do not accept this argument.
- The evidence in support of irreparable harm
must be clear and non-speculative: Nature c. v. Sci-Tech Educational
Inc., (1992), 141 N.R. 363 (FCA). There is no evidence to support Mr.
Mainil's claim that he will be irreparably harmed by the announcement
of the election results, beyond his bare assertion that this would be
the case. I also note that a similar argument was rejected by the
British Columbia Supreme Court in Bob v. British Columbia, 2002 BCSC
- Finally, Mr. Mainil submits that he will
suffer irreparable harm if the votes are opened and counted, as it
will no longer be possible to track which voters were able to vote,
and his ability to demonstrate the effect of the problems in the
electoral process will be lost.
- I have found that a serious issue exists with
respect to the Omitted Producers. The CWB and MNP advise that it is
possible to keep track of these votes by means of the bar code on the
envelopes. They have further advised that they are quite prepared to
do so, if so ordered by the
- I am satisfied that this will address the
concern raised by Mr. Mainil, and accordingly I order that the CWB and
MNP keep track of the votes of the Omitted Producers. The records
should include reference to the bar code only, and not the voters'
names, so as to maintain the anonymity of the voters as required by
section 23 of the Regulations.
- While I have some concern with respect to Mr.
Mainil's standing to challenge the process in electoral districts
other than the one in which he is running, the issue was not explored
by the parties, and I will leave this question for another day. In the
meantime, records should be kept with respect to the votes of the
Omitted Producers in all four of the disputed electoral districts.
Does the Balance
of Convenience Favour the Granting of the Injunction?
- Mr. Mainil submits that it would be better to
have no directors at all in the disputed districts than to have
directors who were improperly elected, and that, therefore, the
balance of convenience favours the granting of an injunction. I do not
- In my view, the balance of convenience
strongly favours allowing the election to proceed. If an injunction
were granted, as of December 31, 2004, producers in four districts
would be without representation at the CWB.
- While the eleven remaining directors would
constitute a quorum, allowing the CWB to operate, tens of thousands of
grain producers would be effectively disenfranchised until such time
as the matter is finally resolved. This is particularly problematic,
as it appears that there are going to be at least two significant
events for the Board of Directors in the upcoming weeks.
- According to the affidavit of Deborah Harri,
the CWB has planned a major consultation with farm leaders regarding
the future of the CWB to take place in early January of 2005. A couple
of weeks later, the CWB will be holding a two-day strategic planning
session for the Board of Directors in order to further develop and
advance the CWB's strategic plan. It is clearly important that
Districts 4, 6, 8 and 10 have input into this process.
- As a consequence, I am satisfied that the
balance of convenience favours the CWB.
- Having failed to establish that he will
suffer irreparable harm, or that the balance of convenience favours
the granting of an interlocutory injunction, Mr. Mainil's motion is
dismissed. Costs shall be in the cause.
THIS COURT ORDERS that:
- The CWB and MNP shall keep a record of the
votes of the Omitted Producers in each of Electoral Districts 4, 6, 8
and 10, recorded by reference to bar code only;
- The motion is otherwise dismissed, with costs
in the cause.
"Anne L. Mactavish"
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE:
THE CANADIAN WHEAT BOARD and
MEYERS NORRIS PENNY and
TOM JACKSON and ROD FLAMAN
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 20, 2004
REASONS FOR ORDER AND ORDER:
The Honourable Madam Justice Mactavish
DATED: December 23, 2004
Mr. Stephen J. Orlowski FOR APPLICANT
Mr. Jonathan B. Kroft FOR RESPONDENT CANADIAN WHEAT BOARD
Mr. David E. Swayze FOR RESPONDENT MEYERS NORRIS PENNY
Mr. Tom Jackson ON HIS OWN BEHALF
Mr. Roderick Flaman ON HIS OWN BEHALF
SOLICITORS OF RECORD:
Orlowski Law Office FOR APPLICANT
Aikins, MacAulay & Thorvaldson LLP FOR RESPONDENT CANADIAN WHEAT BOARD
Meighen, Haddad & Co. FOR RESPONDENT MEYERS NORRIS PENNY