T-2191-04: Written Representations of the Proposed Intervener Tom Jackson

Court File No. T-2191-04

Federal Court - Trial Division

Between:

Arthur Mainil (Plaintiff)

-and-

The Canadian Wheat Board and Meyers Norris Penny (Defendants)

Written Representations of the Proposed Intervener Tom Jackson

Part 1 -- Facts

The Canadian Wheat Board Act
  1. The Canadian Wheat Board Act (the Wheat Board Act) was originally passed by Parliament in 1935. The Act creates the Canadian Wheat Board (the "Board"), whose broad purpose is to purchase all of the production of certain grains (wheat and barley) produced in the "designated area" (primarily the Prairie Provinces) and to market that grain in an "orderly manner" both within Canada and to export markets. The grain purchased by the Board is often referred to as commercial grain, or "Board" grain. There are grains which are included in the definition of grains (such as flaxseed) to which the Wheat Board Act applies, but with respect to which the Board does not exercise a monopoly (which are referred to as "non-Board" grains within the trade).
     
  2. Under the Canadian Wheat Board Act, the Board must buy all wheat produced and offered to the Board by a producer in the designated area: section 32(1)(a). This is the section which provides the Board's mandatory duty:
Quote:
s.32(1)
The Board shall undertake the marketing of wheat produced in the designated area in interprovincial and export trade and for that purpose shall

(a)
buy all wheat produced in the designated area and offered by a producer for sale and delivery to the Board at an elevator or in a railway car in accordance with this Act and the regulations and the orders of the Board;

[Emphasis added]
  1. The Board purchases wheat from producers at a price which is set according to the grade (as established by the Grain Commission) of the type of grain produced:
     
Quote:
(b)
pay to producers selling or delivering wheat produced in the designated area to the Board, at the time of delivery or at any time thereafter as may be agreed on, a sum certain per tonne basis in storage at a pooling point to be fixed from time to time

(i)
by regulation of the Governor in Council in respect of wheat of a base grade to be prescribed in those regulations, and

(ii)
by the Board, with the approval of the Governor in Council, in respect of each other grade of wheat;

[Emphasis added.]
  1. The Board is required to pay producers a minimum price, which is established for the base grade of that type of wheat, which is referred to as the "sum certain": section 32(1)(b). For grades other than the base grade, section 32(2) states:
Quote:
(2)
Each sum certain fixed by the Board pursuant to paragraph (1)(b) in respect of a grade of wheat other than a base grade shall be an amount that brings the sum certain for that grade into proper price relationship with the sum certain for the base grade.

[Emphasis added.]
  1. If "designated area" producers wish to sell to buyers other than the Board, the Board requires the producers to "buy-back" all wheat and barley through what is commonly called the Board's "single desk" or monopoly. This "buy-back" charged producers is normally substantially more than what the Board will pay for this same grain. Thus to market "Board" grain in an "orderly manner" both to Canadian human consumption and to all export markets, the Board's present management maintains the Board cannot survive without this scheme called the "single desk monopoly".
     
  2. A certain number of "designated area" producers believe strongly the "single desk monopoly" extracts a premium for them by forcing all grain sales through the Board. Generally these people are called Board "single desk" supporters.
     
  3. Conversely others believe, just as passionately, the Board's "single desk monopoly" sells their grain at a lower average price than what a scheme that allows competition could achieve. Generally these people are called "dual market" or "open market" proponents.
     
  4. Points 6 and 7 create a dynamic for: robust debate, passionate beliefs, and potential hard and sometimes poisoned feelings to develop between these two very differing points of view. Hence the added pressure for the perception of, and a strong need for, a free, fair and impartial Board election process.
     
  5. Tom Jackson is a 2004 candidate for the position of director of The Board in district 4.
     
  6. Further, Tom Jackson was a candidate for the position of director of The Board in district 4 in 2000, and, in the first set of elections, in district 1 in 1998.
     
  7. Tom Jackson was approved by Board Election Coordinator Peter Eckersley as an observer for district 1 candidate Mr. Leo Meyer in the 2002 Board election tabulation.
     
  8. Tom Jackson has had numerous conversations with the Board Election Coordinator Peter Eckersley and Board management over the voters list's creation and composition over the course of the 2000, 2002, and 2004 Board Director's Elections.

Part II -- Subject of Proposed Intervener

  1. Tom Jackson proposes there is a need for the Honorable Court to define what exactly the words "produce grain" mean in Canadian Wheat Board Act Regulations
Quote:
Voters List
s.6.(1)
Subject to subsection (2), every producer is entitled to be included in the voters list in respect of the electoral district in which they produce grain.

[Emphasis added.]

Part III -- Submissions
  1. The proposed intervener Tom Jackson wishes to submit that the Board uses the unusual meaning "fill out permit book and deliver grain" to define "produce grain". This definition has been used since the first election in 1998. The Board has had and continues to have complete access to all legal land locations/descriptions of all voters through valid permit books.
     
  2. The proposed intervener Tom Jackson wishes to submit that when the Board uses the unusual meaning "fill out permit book and deliver grain" to define "produce grain", many producers are placed in an electoral district other than where they physically produce and grow their actual grain. This is particularly the situation along the borders between Board Districts. The proposed intervener Tom Jackson further submits this is the cause of great confusion for all parties involved in the Board election process, as movement off farm to the Board for delivery can often reach 100 km and sometimes up to 200 km or more, especially in production years of diverse grade patterns.
     
  3. The proposed intervener Tom Jackson wishes to submit that when the Board uses the unusual meaning "fill out permit book and deliver grain" to define "produce grain", many producers who did not deliver Board grain in 2003-04, or 2004-05, therefore were excluded from the voter's list because of this confusion over the definition used by the Board of "produce grain".
     
  4. The proposed intervener Tom Jackson wishes to submit that when the Board uses the unusual meaning "fill out permit book and delivery grain" to define "produce grain", the original voters list submitted in the 2004 election could have been the correct voters list of producers selling Board grain to the Board.
     
  5. If Point 17 is in fact a proper interpretation, proposed intervener Tom Jackson then further submits that approximately 1000 late voter additions should be removed from the ballot tabulation, that then the Honorable Court could order the removal of these late "scannable ballots" before the 2004 Board election is tabulated.
     
  6. The proposed intervener Tom Jackson wishes however, to submit, that when the Board uses the unusual meaning "fill out permit book and delivery grain" to define "produce grain", the Board has not used the proper normal definition of the words "produce grain".
     
  7. The proposed intervener Tom Jackson submits that if the normal meaning of the words "produce grain" in other words "grow grain", are in the opinion of the Honourable Court correct, then the Board voters list is incorrect for all Board districts 1 through 10, and this would necessitate a complete new voter's list with the issuance of the new correct ballots for districts 4, 6, 8 and 10, based solely upon land location.
     
  8. The proposed intervener Tom Jackson submits that the normal meaning of the words "produce grain" in other words "grow grain", have been and are now using land locations as the single criteria by the Board Election Coordinator. The first of these two official Board Election forms is Exhibit "A" (Direct Transfer Request). The proposed intervener notes the restriction "You may only change to a new district if you actually grow grain the new district, and if you did not change districts in the 2000 or 2002 CWB Directors Elections"
     
  9. The proposed intervener submits that; "You may only change to a new district if you actually grow grain in the new district, and if you did not change districts in the 2000 or 2002 CWB Directors Elections" is in direct contradiction to:
Quote:
Canadian Wheat Board Act Regulations
Voters
s.5.(2)
No producer may vote more than once in an election

Voters List
s.6.(2).
A producer who produces grain in more than one district may only be included in one voters list, which is chosen by the producer.

[Emphasis added.]
  1. Exhibit "B" (Statutory Declaration) to the second submission to; "Written Representations of the Proposed Intervener Tom Jackson".

Part IV -- Relief Sought

  1. The proposed intervener Tom Jackson request the Honourable Court to clarify that the words "produce grain" mean "grow grain" providing an interpretation which creates the concise ability of the Board Election Coordinator to administrate the Canadian Wheat Board Election Regulations without any appearance of bias or prejudice.
     
  2. The proposed intervener Tom Jackson requests the Honourable Court to clarify whether or not the restriction, "You may only change to a new district if you actually grow grain in the new district, and if you did not change districts in the 2000 or 2002 CWB Directors Elections" is in accordance with Canadian Wheat Board Election Regulations s.5.(2) and s.6.(2).
     
  3. The proposed intervener Tom Jackson requests this leave to intervene in support of the application by Arthur Mainil for an injunction against The Canadian Wheat Board and the election coordinator and in support of the application that the election process be repeated.

All of which is respectfully submitted this 16th day of December 2004.

(Signed by Thomas R. Jackson)