Administrative law – Decisions of administrative tribunals – Ministerial orders – Associations and clubs – Governance – Voting rights – Judicial review – Applications – Parties – Standing
Friends of the Canadian Wheat Board v. Canada (Attorney General),  F.C.J. No. 297, 2011 FCA 101, Federal Court of Appeal, March 16, 2011, Létourneau, Nadeau and Sexton JJ.A.
The Appellants, a group of farmers, brought an application for a judicial review of the government’s decision to issue a directive regarding the election of directors to the Canadian Wheat Board (the “CWB”). The Minister’s directive changed the way in which people were automatically included on the initial voter’s list. Specifically, before the directive, all persons named in a permit book in the past two years were automatically included on the initial voter’s list. After the directive, only those persons named in a permit book who had delivered grain to the CWB in the past two years were entitled to be listed on the initial voter’s list. The directive therefore changed the rights that attached to holding a permit book.
The Appellants brought an application for judicial review of the Respondent government’s decision to issue the directive. The Federal Court Judge dismissed the application for judicial review. He found the Appellants lacked standing to challenge the decision because they were already on the voter’s list and were therefore not personally affected by the directive. He also found the directive was lawfully issued and did not contravene the applicable regulations.
The Appellants succeeded at the Federal Court of Appeal in convincing the Court that they were personally affected by the directive. The Court of Appeal found the Judge took too narrow a view of the concept “directly affected” for a few reasons.
First, the Court of Appeal found the directive changed the rights attaching to holding a permit book and directly affected all of the Appellants (except for the Friends of the CWB). In addition, the directive imposed an obligation on the Appellants to establish their eligibility through the newly created application form process if they were not included in the initial voter’s list. It was also noteworthy that the Appellants were not deprived of standing simply because some or all of them were not affected at the past election; they did not have to wait until the directive caused them a loss. Finally, the Court of Appeal commented that all of the Appellants have a direct interest in ensuring that the election of members of the CWB is conducted and held according to the law and thus have personal standing to challenge the vires of the Minister’s directive.
The Court of Appeal then turned to review the merits of the appeal. The directive clearly indicated that the Minister wanted to ensure that only producers eligible to vote at the election would appear on the voter’s list. The directive provided a means for facilitating the proof that a permit holder is a producer eligible to vote at the election. The Court of Appeal agreed with the Judge that the directive was permissible since it was a “measure intended to ensure the integrity of the voter’s list” and was therefore a “measure that determined the proper conduct and supervision of an election of directors” within the meaning of the relevant section of the Regulations.
The Court of Appeal allowed the appeal in part and declared that the Appellants (except for the Friends of the CWB) had personal standing to bring the application for judicial review. However, the Court of Appeal dismissed the appeal on the merits of the application for judicial review.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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