Judgments

Decision Information

Decision Content

T-1929-87
Jim Lacey of Maple Creek in the Province of Saskatchewan, Russell Larson of Outlook in the Province of Saskatchewan, Chris Boon of Lucky Lake in the Province of Saskatchewan, Leah MacDonald of Taber in the Province of Alberta, Les Prosser of Minburne in the Province of Alber- ta, Glenn Freadrich of Killam in the Province of Alberta and Gary Nestibo of Goodland in the Province of Manitoba (Plaintiffs)
v.
Her Majesty the Queen in right of Canada (Defendant)
INDEXED AS: LACEY V. CANADA (T.D.)
Trial Division, Joyal J.—Regina, March 15; Ottawa, August 30, 1989.
Agriculture — Sale of wheat through Canadian Wheat Board in 1985-1986 crop year — Profits and losses — Method of accounting — Whether Board may take profits from sales of particular grade of wheat to offset losses from sales of other grades in wheat pool (price pooling method of account ing) or whether Board must distribute profits from sales of particular grade among producers of that grade and have Crown cover losses from sales of other grades (grade by grade basis of accounting) — Act interpreted — Operation of Board must be revenue neutral — Board not price or income support agency — Statutory quid pro quo to sharing of profits: bearing risk of losses.
The Canadian Wheat Board is an agent of Her Majesty the Queen in right of Canada entrusted by Parliament to market and sell Western grain on behalf of grain producers. In the 1985-1986 crop year, the Board's operations resulted in a $54,300,000 surplus on sales of the plaintiffs' grade of wheat and a $77,300,000 loss on sales of other grades of wheat. The Board took the surplus to offset the losses and arrived at a net deficit of $23,000,000, which, in accordance with the Canadian Wheat Board Act, was covered by Parliamentary appropria tions. It was the plaintiffs' position that the Board's losses, according to law, must be calculated on a grade by grade basis and that the surplus enjoyed on the sales of their own grades of wheat should not be absorbed by the losses suffered through the sales of other grades of wheat. The plaintiffs submitted that the Crown was therefore bound to pay to the Board the total deficit of $77,300,000 so that their own surplus may become available for distribution. The Crown refused. The plaintiffs sought declaratory relief with respect to the sums allegedly owing to them from the sales of their wheat during the crop year 1985-1986.
Held, the action should be dismissed.
On the one hand, subsection 5(3) of the Act speaks of losses incurred from its operations under Part III in relation to any pool period, inferring of course that the wheat pool is to be regarded as a unit in the determination of losses.
On the other hand, subsection 26(5) seems to provide to any producer an assurance that whatever price he receives for his particular grade, it will bear a proper relationship to that for each other grade.
To add to the problem, there is the provision contained in subsection 26(2) which, in entitling a producer to share in any surplus according to grade, implies that each grade should be treated as a separate unit.
The major purpose in creating and maintaining the Canadian Wheat Board is the continued orderly marketing of grain at the best possible price under existing market conditions for both domestic and export trade. The cornerstone of the scheme to achieve an orderly marketing of grain and to provide to all producers equal access to the market is the concept of price pooling among producers. This offsets price fluctuations during any marketing year.
Prior to the crop year, the Board makes a calculated estimate as to what price each grade will command. It then fixes an initial payment price for each grade. Producers are paid accordingly when they sell their wheat to the Board. In effect, each producer, no matter what the downturn in market prices over the crop year, is assured of receiving no less than the initial payment. This not only guarantees a floor price to the producer but also provides him with the necessary cash flow pending final calculations at the end of the crop year. The 1985-1986 crop year was the only year over a period of twenty crop years that the wheat pool suffered a loss which had to be paid out of public monies.
The evidence is that Board expenses are calculated on a pool basis, irrespective of whether a certain grade might require more expenses than another. The reasonable conclusion is that the scheme of the Act envisages a sharing of risks and rewards between all wheat producers. As a result, it would be logical to conclude that Parliament's intention in adopting the statute was to create a wheat pool encompassing all grades of wheat from which all profits realized on all sales, minus expenses incurred on all sales, are distributed to the producers as final payment.
This is confirmed by the Act itself. Subsection 5(3) refers to operational losses covering the whole wheat pool: losses on certain grades of wheat as well as profits on other grades are pooled to arrive at a net surplus or net deficit position. Subsec tion 26(2) does not speak of losses or the method of calculating them. One must therefore go back to the more generic provi sions of subsection 5(3) to discern Parliament's intentions.
Also basic to the scheme of the statute is that the operation of the Board must be revenue neutral. It does not function as a price or income support agency. The unrecoverable initial payment is the only element of price support. To extend that support in the manner suggested by the plaintiffs (entitlement to profits on a grade by grade basis) would mean that the producer would not have to bear the risks of losses on his grade of wheat but would nevertheless be entitled to all profits realized on that grade. Parliament would have said so more clearly if that had been its intention. The situation which faced the plaintiffs in 1985-1986 was an inherent risk which all producers, irrespective of grades, sooner or later, have to bear. It is, in essence, a statutory quid pro quo.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to amend The Canadian Wheat Board Act, 1935, S.C. 1942-43, c. 4.
An Act to amend the Canadian Wheat Board Act, S.C, 1967-68, c. 5, ss. 3, 6.
Canada Grain Act, R.S.C., 1985, c. G-10.
Canada Grain Act, R.S.C. 1970, c. G-16.
Canadian Wheat Board Act, R.S.C., 1985, c. C-24.
Canadian Wheat Board Act, R.S.C. 1970, c. C-12, ss. 5(2),(3), 25(1) (as am. by S.C. 1972, c. 16, s. 3; 1974-75-76, c. 109, s. 2), (1.1) (as enacted by S.C. 1974-75-76, c. 109, s. 2(2)), 26(2) (as am. by S.C. 1974-75-76, c. 27, s. 1; 1976-77, c. 55, s. 2), (5), (as am. by S.C. 1976-77, c. 55, s. 2) 27, 35 (as am. by S.C. 1972, c. 16, s. 5; 1976-77, c. 55, s. 2).
Canadian Wheat Board Act, S.C. 1919-20, c. 40, s. 15. Canadian Wheat Board Act, 1922, S.C. 1922, c. 14, ss. 16, 17.
Canadian Wheat Board Regulations, C.R.C., c. 397, s. 26(1) (as am. by SOR/85-413, s. 1).
Order in Council P.C. 1917-1604, C. Gaz. 1917.51.1581. Prairie Grain Advance Payment Act, R.S.C., 1985, c. P-18.
The Canadian Wheat Board Act, 1935, S.C. 1935, c. 53. Western Grain Stabilization Act, R.S.C., 1985, c. W-7.
CASES JUDICIALLY CONSIDERED APPLIED:
Kiist v. Canadian Pacific Railway Co., [1980] 2 F.C. 650 (T.D.).
REFERRED TO:
Westminster Bank Ltd. v. Zang, [1965] A.C. 182 (H.L.); R. v. Mojelski (1968), 65 W.W.R. 565 (Sask. C.A.); Jones v. A.G. of New Brunswick, [1975] 2 S.C.R. 182; 45
D.L.R. (3d) 583; (1974) 1 N.R. 582; 7 N.B.R. (2d) 526; 16 C.C.C. (2d) 297; Goodman v. Criminal Injuries Comp. Bd., [1981] 2 W.W.R. 749 (Man. C.A.); Attor- ney-General for Canada v. Hallet & Carey Ltd., [1952] A.C. 427 (P.C.); Murphy v. Canadian Pacific Railway and The Attorney General of Canada, [1958] S.C.R. 626; 15 D.L.R. (2d) 145; The Queen v. Klassen (1959), 20 D.L.R. (2d) 406 (Man. C.A.); Oatway v. Can. Wheat Board, [1944] 3 W.W.R. 337 (Man. C.A.).
AUTHORS CITED
Driedger E. A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
COUNSEL:
Aaron A. Fox for plaintiffs.
Duff F. Friesen, Q.C. for defendant.
SOLICITORS:
McDougall, Ready, Regina, for plaintiffs.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
JOYAL J.: The plaintiffs seek declaratory relief from this Court with respect to certain sums allegedly owing to them from the sales of their wheat to the Canadian Wheat Board during the crop year 1985-1986.
The plaintiffs contend that upon a proper inter pretation of the Canadian Wheat Board Act, R.S.C. 1970, c. C-12, now R.S.C., 1985, c. C-24, the Canadian Wheat Board (the "Board") owes them the sum of $54,300,000. This sum is the balance allegedly earned by the Board on the plaintiffs' sales of their particular grades of wheat. The Board took this amount to offset losses suf fered on the sale of other grades of wheat and ruled that no further sums were owing to the plaintiffs.
The Canadian Wheat Board is an agent of Her Majesty the Queen in right of Canada. Losses suffered by the Board in its operations from year to year are covered by Parliamentary appropria tions. In the year 1985-1986, the total wheat oper ations of the Board resulted in a deficit of $23,000,000. This was the net deficit amount on
all sales after accounting for a $54,300,000 surplus on sales of the plaintiffs' grades of wheat and a $77,300,000 loss on sales of other grades of wheat. That net deficit of $23,000,000 was accordingly paid to the Board by the Crown.
It is the plaintiffs' position that the Board's losses, according to law, must be calculated on a grade by grade basis and that the surplus enjoyed on the sales of their own grades of wheat cannot be absorbed by the losses suffered through the sales of other grades of wheat. Plaintiffs submit that the Crown is therefore bound to pay to the Board the total deficit of $77,300,000 so that their own surplus may become available for distribution. This, the Crown has refused to do.
After an exchange of pleadings both parties agreed to have the issue determined on the basis of an Agreed Statement of Facts and the trial pro ceeded accordingly.
The claim by the plaintiffs for declaratory relief cannot be defined as a simple action for debt. It involves an interpretation of certain provisions of the Canadian Wheat Board Act. These provisions must be read in relation to the complex operations of the Canadian Wheat Board which is entrusted by Parliament to market and sell Western grain on behalf of grain producers. For a better understand ing of the issues, therefore, it might be appropriate to outline the background of this multi-billion dollar marketing agency which has been a part of the Western landscape for many years.
HISTORICAL BACKGROUND OF THE CANADIAN WHEAT BOARD
The marketing of Western grain by a public agency goes back to 1917 [Order in Council P.C. 1917-1604, C. Gaz. 1917.51.1581] with the appointment of the Board of Grain Supervisors [of Canada] to meet wartime exigencies and to exer cise monopoly power over Canadian wheat.
In 1919, Parliament adopted the Canadian Wheat Board Act [S.C. 1919-20, c. 40] with its own self-destruct system as of August 15, 1921 [section 15].
A new Act [Canadian Wheat Board Act, 1922], S.C. 1922, c. 14, followed in 1922. It was expressly provided in section 16 of this statute that the Government of Canada was not responsible for any deficits in the Board's operations. This Act also had a similar sunset clause [section 17].
Prairie wheat pools developed at about this time. These were based on cooperative marketing princi ples and through them a Central Selling Agency was established. Through voluntary contract pool ing of grain, direct selling and the establishment of overseas selling agencies, the marketing arm for the three grain producing provinces marketed slightly over half of all wheat produced during its years of operation. The Central Selling Agency, however, encountered great difficulties during the depression years and this forced the government to intervene. A stabilization operation was estab lished and this in turn led directly to the Canadian Wheat Board legislation of 1935 [The Canadian Wheat Board Act, 1935, S.C. 1935, c. 53].
The current Board structure derives from that legislation. Like its predecessor, it was intended to have a temporary existence and participation in it was optional. Yet it remained in existence through the war years and in 1943 [S.C. 1942-43, c. 4], the Board was granted its current marketing monopo ly.
It may be said that it was only in 1967 that the Board took on the character of "permanent" insti tution. It was in that year that the provisions of the Canadian Wheat Board Act calling for a review of the Board's mandate every five years were repealed [S.C. 1967-68, c. 5, ss. 3, 6].
CURRENT OPERATIONS OF THE BOARD
The current mandate of the Board involves the marketing of Western grain at the best possible price under existing market conditions for both domestic and export markets. Grain is not stored to await an up-turn in world prices but is contin uously moved. The cornerstone of the system is price pooling among producers to offset price fluc tuations within any crop year. This price pooling has all the characteristics of the farmer-led co operative movement during the 1920s and 1930s. Central to the pooling idea is the delivery quota system used by the Board to draw forward the specific types and grades of grain for which there is an immediate market.
There is no control over production. Neither are there restrictions or incentives for the production of any type or grade of grain. Producers are free to produce what they will but delivery quotas give access to the delivery system in relation to the assigned acreage in the producer's permit book.
The Board's transportation division recommends delivery quotas to control the flow of grain from the farmers in the kinds and grades required to meet sales commitments. The Board owns no elevators or other handling facilities because, from its inception as the modern Canadian Wheat Board in 1935, the Board was enjoined to employ existing facilities of the trade. The Board therefore acts through agents involved in elevator storage, processing and handling of Board grains.
The Board sells grain to virtually every grain importing nation in the world. Approximately 90% of the total volume of grain exported from western Canada is negotiated and coordinated by the Board. All Prairie grown wheat, oats and barley, for either domestic or export markets, is handled by the Board. If one remembers that in 1986 there
were over 145,000 grain farmers in the Board's designated areas, handling some four types of grains and with each type classified into any number of grades carrying price spreads, the scope, complexity and sheer size of the Board's operations from year to year become evident.
The Board's duties and functions sometime include the administration of programs unrelated to the marketing of grain. For instance, since 1957, the Board has been responsible for the run ning of the Prairie Grain Advance Payment Act, R.S.C., 1985, c. P-18. This program ensures a cash flow for producers with farm-stored grain due to storage congestion in elevators. Their cost advances afford the Board greater latitude in establishing delivery quotas to meet market needs without having to worry as much over the cash requirements of producers.
The objective of income or price stabilization, as far as my authorities are concerned, does not fall within the purview of the Board. The Board's mandate does not encompass a price support system as that expression is commonly defined. Pooling of returns, as well as the equalization of delivery opportunities, may of course result in a limited form of stabilization within a given crop year. The year to year price, however, is governed by world market forces.
The Federal Government has nevertheless adopted some form of subsidization through the Western Grain Stabilization Program introduced in 1976. That program operates independently of the Board. It is funded jointly by the producers and by the government. Payments from the fund are triggered when the net cash flow to producers falls below the average received over the previous five years. In the 1988 crop year, some 89% of western producers participated in the program.
With all this in the background, it is necessary now to focus the issue before me on the underlying
facts of the case and on which the parties have agreed.
SUMMARY OF AGREED STATEMENT OF FACTS
As we have seen, the plaintiffs are engaged in the production of wheat in western Canada.
The Canadian Wheat Board is, for all purposes relevant to this trial, an agent of Her Majesty the Queen in right of Canada. Also for purposes of this trial and to avoid confusion, I should refer to the Board's governing statute in terms of R.S.C. 1970, c. C-12.
The object of the Board is to market Canadian grain both for export and for domestic consump tion. The marketing of this grain is according to grades. These different grades of grain are fixed by the Canadian Grain Commission which is established pursuant to the Canada Grain Act, R.S.C. 1970, c. G-16, now R.S.C., 1985, c. G-10.
The Board is required by the Act to buy all wheat and certain other grains produced in Manitoba, Saskatchewan, Alberta and certain parts of British Columbia referred to in the Act as "designated area" and offered by a producer for sale and delivery to the Board at an elevator or in a railway car.
The operations of the Board in that regard are carried on in part under agreements between the Board and companies which own and are licensed to operate primary elevators in western Canada. The applicable agreements prohibit the operators from purchasing wheat, barley or oats except for the account of the Board, when the quality or grade is higher than that for "feed grain".
Part III of the Act authorizes and requires the Board to undertake the marketing of wheat pro duced in the designated area in interprovincial and export trade and establishes rights and obligations of the Board in respect of its transactions and accounting with respect to such wheat. By virtue of section 35 [as am. by S.C. 1972, c. 16, s. 5; 1976-77, c. 55, s. 2] of the Act, Part III, as necessarily modified, can be made to apply to oats and barley as well.
Subsection 5(3) of the Act provides: 5....
(3) Losses, if any, sustained by the Board
(a) from its operations under Part III in relation to any pool period fixed thereunder, during such pool period, or
(b) from its other operations under this Act during any crop year,
for which no provision is made in any other Part, shall be paid out of moneys provided by Parliament.
A crop year or "pool period" (as defined by the Act) runs from August 1 to July 31. The Board purchases wheat or other grains and then sells them on the domestic or international markets.
Subsection 26(5) [as am. by S.C. 1976-77, c. 55, s. 2] states in part:
26... .
(5) ... each producer shall receive, in respect of wheat sold and delivered to the Board during each crop year for the same grade thereof, the same price basis Thunder Bay or Vancouver and that each such price shall bear a proper price relationship to that for each other grade.
In determining the net market return to be attributed to each grade of grain marketed the Board uses a "price pool" method of accounting which (i) pools the grades of grain, to which it considers Part III of the Act applies, separately; and (ii) maintains the price relationships of each grade to the others established by transactions in domestic and international markets throughout the crop year.
This method of accounting also takes into account (i) all sales of all grades of grain in each pool and (ii) all direct and indirect costs of sales of all grades of grain in a pool so that any payment to producers will further the objective expressed in subsection 26(5).
The price pool method of accounting used by the Board does not take into account risks or rewards of short term fluctuations in market prices, or of unusual incidents affecting costs of sales. The risks and rewards are not charged or credited only to the account of the particular grade of grain affect-
ed but are absorbed by and distributed amongst the accounts of all grades of grain in a pool.
Subsection 26(1) of the Regulations [Canadian Wheat Board Regulations, C.R.C., c. 397 (as am. by SOR/85-413, s. 1)] fixes the sum certain per tonne to be paid to producers selling and delivering wheat of a base grade (No 1 Canada Western Red Spring-CWRS, is used as the reference point for all other grades of wheat) produced in the desig nated area. This payment is called an initial pay ment and may be increased during the crop year if the Governor in Council sees fit.
At the time of initial payment a producer is issued a Producer's Certificate indicating the number of tonnes of grain purchased and delivered and the grade thereof. This certificate entitles him "to share in the equitable distribution of the sur plus, if any, arising from the operations of the Board with regard to the wheat produced in the designated area sold and delivered to the Board during the same pool period" (paragraph 25(1)(c) of the Act).
The Board subsequently has an obligation to distribute on or after the 1st day of January of the year commencing after the end of any pool period the "appropriate sum determined by the Board as provided in this Act for each tonne of wheat referred to therein according to grade" (subsection 26(2) [as am. by S.C. 1974-75-76, c. 27, s. 1; 1976-77, c. 55, s. 2] of the Act). A payment made under this provision is considered to be a final payment.
All the grades of wheat to which initial prices are set are treated as a pool called the "wheat pool" by the Board. Furthermore, Part III of the Act is to apply separately to the various designated grades of grain in accordance with subsection 26(2) and subsection 25(1) [as am. by S.C. 1972, c. 16, s. 3; 1974-75-76, c. 109, s. 2] of the Act. Thus the various grades of amber durum wheat, oats and barley are treated as three separate pools by the Board namely, the "amber durum" the "oat" and the "barley" pools.
During the 1985-1986 crop year (commencing August 1, 1985 and ending July 31, 1986) the Board fixed and the Governor in Council approved an initial price of $160 per tonne for the base grade wheat (No. 1 CWRS) pursuant to subsec tion 26(1) of the Regulations and subsection 25(1) of the Act. Accordingly, the Board was also authorized and required to make initial payments with respect to the other grades of wheat on "a sum certain per tonne basis in storage Thunder Bay or Vancouver".
As it turned out, world grain prices generally fell sharply in the 1985-1986 crop year. There were, however, periods throughout that year when the selling price for high grade and high protein wheat was not as depressed as the other grades. However, in general, the net market return per tonne, for a number of grades of wheat, after deduction of the expenses incurred in connection with the operations of the Board attributable to the "wheat pool", was less than the initial payment in respect of those grades.
In utilizing the "pooling method of accounting" it was determined that a "surplus" of approxi mately $54,300,000 was realized by the higher grades of wheat while a "loss" in the approximate amount of $77,300,000 was incurred by the lower grades of wheat in the pool. Thus the Board determined that the "wheat pool" had sustained a deficit of $22,994,777 from its operations thereto and, pursuant to subsection 5(3) of the Act, that amount was paid with respect to the pool's net losses by monies provided by Parliament.
The Board determined that in those circum stances there was no surplus arising from the operations of the Board in respect of the wheat pool to be distributed to the producers. According ly, the Governor in Council did not authorize a final payment to the producers pursuant to subsec tion 26(5) of the Act in respect of any grades of wheat included in the wheat pool.
The plaintiffs were producers of the higher qual ity wheat. They claim that the Government setting off the profits made from their high grade wheat
against the losses of the lower grade wheat was particularly inequitable on the producers of high quality wheat since the higher quality grades not only in effect subsidized the lower grades of wheat, but the producers of this better wheat generally also had lower crop yields than the producers of lower quality wheat.
THE PLAINTIFFS' POSITION
The plaintiffs submit that the defendant is required pursuant to subsection 5(3) of the Act to reimburse the Board for any losses sustained with respect to each and every grade of wheat, calculat ed on a grade-by-grade basis. The plaintiffs con tend that, as the defendant failed to pay the Board the approximately $77 million lost on the sale of all grades of wheat on which the Board incurred a loss, the Board was forced to apply the surplus of $54,300,000 realized from the sale of higher grades of wheat against the loss incurred on the sale of the lower grades of wheat and thus this money was not available as a final payment to the producers of those grades of wheat. In essence, the plaintiffs' position is that if profits are to be dis tributed according to grade, it follows logically that losses are to be similarly treated.
THE DEFENDANT'S POSITION
The defendant submits that the reference to subsection 5(3) of the Act to the operation a l of the Board under Part III of the Act is directed to all of the operations of the Board to which Part III applies. The defendant submits that the operations of the Board in respect of wheat (and other grains) are governed by Part III of the Act without distin guishing on a grade-by-grade basis amongst the various grades of grain. Thus for the purposes of subsection 5(3) of the Act the financial results of the operations of the Board are to be determined separately for each pool for all the grades of each of the grains to which Part III of the Act applies separately.
THE ISSUE
Subsection 5(3) of the Act provides that "losses, if any, sustained by the Board from its operations
under Part III ... shall be paid out of moneys provided by Parliament".
Subsection 26(5) provides that each producer is to receive for his wheat of a particular grade "the same price whether at Thunder Bay or Vancouver and such price shall bear a proper price relation ship to that for each other grade".
Subsection 26(2) of the Act provides that after the end of any pool period, the Board is to distrib ute the balance remaining in its account in respect of wheat it has purchased an appropriate sum for each tonne of wheat according to grade.
At first blush, there is an appearance of conflict or ambiguity in these provisions. On the one hand, the Act in subsection 5(3) speaks of losses incurred from its operations under Part III in relation to any pool period, inferring of course that the wheat pool is to be regarded as a unit in the determina tion of losses.
On the other hand, subsection 26(5) seems to provide to any producer an assurance that what ever price he receives for his particular grade, it will bear a proper relationship to that for each other grade.
To add to the problem, there is the provision contained in subsection 26(2) which, in entitling a producer to share in any surplus according to grade, implies that each grade should be treated as a separate unit.
An analysis of those provisions and the infer ences which might be drawn from them require, in my view, the application of any number of alterna tive or concurrent rules of statute interpretation so as to determine whether the foregoing provisions are veritably in conflict or ambiguous, and if so, how can they be rationally reconciled in accord ance with the scheme of the whole statute.
THE INTERPRETATION OF THE STATUTE AND THE CASE FOR THE PARTIES
E. A. Driedger's Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983, has become the vade-mecum of anyone involved in statute inter-
pretation. The author, after reviewing the history of the various doctrines propounded from time to time states at page 87 that:
Today there is only one principle or approach, [to the interpretation of a statute or statutory provision,], namely the words of an- Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
The author adds that this principle is expressed repeatedly by modern judges, as for example, Lord Reid in Westminster Bank Ltd. v. Zang, [1965] A.C. 182 (H.L.) and Culliton C.J., in R. v. Mojel- ski (1968), 65 W.W.R. 565 (Sask. C.A.).
Apart from doctrine, many maxims have been adopted over the years, i.e., "that special words do not derogate from the general" or the reverse "general words do not derogate from the special". There is also the maxims "expressio unius est exclusio alterius" as well as "abundans cautela non nocet". In Jones v. A.G. of New Brunswick, [1975] 2 S.C.R. 182; 45 D.L.R. (3d) 583; (1974) 1 N.R. 582; 7 N.B.R. (2d) 526; 16 C.C.C. (2d) 297, the late Chief Justice Laskin observed, how ever, that maxims provide at most merely a guide to interpretation and do not pre-ordain conclu sions. In Goodman v. Criminal Injuries Comp. Bd., [1981] 2 W.W.R. 749 (Man. C.A.), Hall J.A. stated that no matter how useful a tool a maxim may be, it cannot displace the duty to look at the statute as a whole.
To apply the current rules of interpretation to the case at bar, one must view whatever conflict or ambiguity which arises between subsection 5(3) and subsection 26(5) in the light of the words used and of Parliament's intention in adopting them. In this regard, Driedger at page 106 sets up a method of construction to deal with this, stressing however that the intention of Parliament usually denotes the intention of a statute as a whole rather than the intention of a particular provision. The author then divides Parliamentary intention into the fol lowing elements namely:
(1) the expressed intention, i.e., the intention expressed by the enacted words;
(2) the implied intention, i.e., the intention that may legitimately be implied from the enact ed words;
(3) the presumed intention, i.e., the intention that the Courts, in the absence of an indica tion to the contrary, impute to Parliament; and
(4) the declared intention, i.e., the intention that Parliament itself has said may be or must be or must not be imputed to it.
The "presumed" intentions of Parliament are often the inventions of courts. For example, a statute will be presumed not to derogate from the common law except to the extent that it is essential for its purposes. Another presumption is that the liberty or property of a citizen against interference by the state is to be protected. Counsel for the plaintiffs in this regard argues that the Act should be interpreted in a fashion more favourable to the plaintiffs on the grounds that the compulsory fea ture of the scheme encroaches upon the rights of subjects. Counsel quotes in support the Privy Council decision in Attorney-General for Canada v. Mallet & Carey Ltd., [1952] A.C. 427 (P.C.). Furthermore, according to plaintiffs' counsel, a court should not be guided in the matter of statute interpretation by what any board or agency administering it believes it to be. The true test is the Act itself.
Counsel advances the proposition that on a proper reading of section 26 of the Act, the grade by grade approach to profits and losses is a neces sary inference to be drawn and makes clear Parlia ment's intention in that respect. The statute clear ly states that surpluses are to be distributed according to grades. It follows, says counsel, that losses should be similarly treated.
Counsel for the plaintiffs also refers to certain interpretative comments by the courts when deal ing with the Act's scheme and purpose and with the Board's duties and obligations thereunder.
Counsel cites the Supreme Court of Canada decision in Murphy v. Canadian Pacific Railway
and The Attorney General of Canada, [1958] S.C.R. 626; 15 D.L.R. (2d) 145, where the Act, in substantially the same terms, was under review. Locke J., at pages 630 S.C.R.; 156 D.L.R., said this:
The Board is required to undertake the marketing of all the grain delivered either to elevators or railway cars and the producers receive their proportionate share of the moneys realized from the sale of grain of the grade delivered by them less the expenses of the operation of the Board. [Emphasis added.]
Counsel also refers to another Canadian Wheat Board case in The Queen v. Klassen (1959), 20 D.L.R. (2d) 406 (Man. C.A.) where it is stated at page 414:
This submission ignores the other but equally essential feature of the controls, the equitable rationing of delivery opportunity and the ensuring that as nearly as may be all producers whose freedom to trade is interfered with by the scheme will get the same price at the same time for the like kind and quantity of grain. [Emphasis added.]
Again relying on the scheme of the Act which provides that all profits of the Board are to be distributed to the producers, a position adopted by MacPherson C.J.M., in Oatway v. Can. Wheat Board, [1944] 3 W.W.R. 337 (Man. C.A.), plain tiffs' counsel concludes that the interpretation sug gested by the Crown would effectively generate a benefit of some $54 millions to the Crown, a benefit which has in fact been earned by the plaintiffs. The intent of Parliament as disclosed in section 25 and section 26 of the Act is to the contrary: the grade by grade accounting method for determining profits or losses is clearly indicat ed in the language used. This interpretation, says counsel, is made clearer by section 25(1.1) [as enacted by S.C. 1974-75-76, c. 109, s. 2(2)] of the Act which provides for a proper price relationship to the base grade of wheat, i.e. No. 1 CWRS. Such relationship requires that a producer receive a payment in accordance with his grade and that by implication this would apply not only to the calculation of his initial payment but to his final payment as well. Furthermore, the words used in section 27 of the Act, i.e., "The Board shall main tain separate accounts with regard to its operations in respect of wheat" [emphasis added], clearly indicates, according to counsel, that accounting by grade is intended.
In reply, counsel for the Crown urges the Court to adopt the comments of Gibson J. in Kiist v. Canadian Pacific Railway Co., [1980] 2 F.C. 650 (T.D.), found at pages 655-656:
In carrying out such national policy however, the Board has not and does not function as a price or income support agency. Instead, the price paid to producers is that obtained by the Board from both domestic and foreign customers.
As to the overall operations of the Board in carrying out its statutory powers and duties, as I understand it however, it may be said that the Board implements its national grain marketing policy by employing five policy mechanics, namely: (1) by the use of year long price pools; (2) by the use of marketing quotas; (3) by the management of transportation; (4) by the use of the Winnipeg Commodity Exchange; and (5) by the use of a complex export selling system. [Emphasis added.]
Counsel for the Crown accordingly concludes that to adopt the interpretation urged by the plain tiffs, certain producers of certain grades of wheat would be entitled to any surplus, unexpected or not, while at the same time, other producers of other grades, in a market downturn, would not have to account for their losses. It would mean in effect that producers would absorb all the sur pluses and, taking into account the non-refundable initial payment already received, would never have to bear any losses. Such an approach would in essence be a price and income support scheme which is not Parliament's intention, and which the statute does not create.
Counsel for the Crown further finds support in the same provisions of the Act relied on by the plaintiffs. He quotes subsection 26(2) which imposes "a duty on the Board to distribute the balance remaining in its account in respect of wheat" [emphasis added]. He also quotes subsec tion 26(5) which provides that the Board, with the approval of the Governor in Council, fixes the amounts to which producers are entitled per tonne according to grade in order that all producers, according to grade, receive the same price and that such price bears a proper price relationship to that for each other grade.
These provisions, according to the Crown, make it clear that it would be contrary to the scheme and terms of the legislation to treat the Board's operations under Part III as constituting distinct
and separate operations for each separate grade of wheat for purposes of calculating losses recover able under subsection 5(3).
Crown counsel finds that this interpretation achieves the purpose of the statute which is to pool all amounts realized from the sale of all grades of wheat. This in turn provides price stability to producers and ensures that each of them obtains a fair share of the market. The price pooling method of accounting permits the Board to make con sidered decisions relating to initial price, purchas ing, storage, transportation and marketing. It enables it to minimize costs, to maintain price spreads and to assure a fair and equitable distribution.
CONCLUSIONS
Given the history of the Canadian Wheat Board, it appears evident that the major purpose in creating and maintaining an agency of that nature is the continued orderly marketing of grain at the best possible price under existing market condi tions for both domestic and export trade. Grain is not hoarded in the hopes of receiving higher prices in the event of a market upturn. There is no rush to fill the bins when the market is buoyant nor is there the possibility that any major producer would dump his grain at any particular time and because of his economies of scale, still realize a profit at depressed prices.
The cornerstone of the scheme to achieve an orderly marketing of grain and to provide to all producers equal access to the market is the concept of price pooling among producers. Price pooling offsets price fluctuations during any marketing year. In this way, it matters not to the individual producer whether he delivers early or late in the crop year or whether, at time of delivery, grain prices are up or grain prices are down.
The ramifications of this basic pooling approach are many. The particular grade or quality of wheat is set by the Canadian Grain Commission. Prior to the crop year, the Board must make a calculated estimate as to what price each of the several
grades will command, making sure that appropri ate price spreads, based on market experience, are maintained. The Board then fixes an "initial pay ment" price for each grade, using No. 1 Canadian Western Red Spring as a base from which the spreads are calculated.
The initial payment must be approved by the Governor in Council and in fact, the payment set out for the year 1985-1986 is found in Order in Council 1985-1466 [SOR/85-413] dated May 2, 1985. Such a payment is the sum certain for wheat of the base grade to be paid. As I interpret the scheme, this sum certain triggers off the price for all the grades of wheat. In effect, therefore, each producer, no matter the downturn in market prices over the crop year, is assured of receiving no less than the initial payment. It is in effect a scheme which not only guarantees a floor price to the producer but at the same time provides him with the necessary cash flow pending final calculations at the end of the crop year.
Board decisions in this respect involve the balancing of delicate factors as well as the applica tion of intricate mechanisms. The Board will not consciously recommend to the Governor in Council an unduly high initial price, thereby increasing the risk of deficits which Parliament would have to pick up. Nor will it fix an unduly low price, thus depriving the producer of his necessary cash requirements for his on-going expenses. The experience of the Board in respecting these com peting pulls and drags over its many years of existence speaks highly of it: The year 1985-1986 is the only year over some twenty crop years that the "wheat pool" suffered a loss which had to be paid out of public monies.
The evidence before me is that Board expenses are calculated on a pool basis. All expenses for the wheat pool are charged to that pool, irrespective of whether expenses in relation to any particular grade of wheat or group of grades, might be otherwise disproportionate. It matters not if han dling, transhipment, derailments or other vagaries impose additional cost burdens with respect to any particular grade, the total expenses are shared by
all. The costs attributable to each grade are based on quantities only.
The reasonable conclusion to be drawn from this is that the scheme of the Act envisages a sharing of risks and rewards between all wheat producers. These producers, although entitled to returns dependant upon the various grades of wheat they sell, nevertheless submit their individual interests to the experience of the group as a whole. No producer has, of course, a choice in the matter, even though any producer might have the acumen and the clout to proceed independently. The stat ute, however, does provide for equitable, if shared, treatment of all of them. This is accomplished, at least in statutory terms, by a system of price pooling over the market experience of a whole crop year so as to determine the average yield no matter when individual deliveries and sales to the Board are made. It is reflected in the maintenance of price spreads between various grades of wheat so that high volume, lower-priced wheat will be treat ed in the same way as low-volume higher-priced wheat. It is further accomplished by a system of initial payments, essentially a guaranteed, non refundable floor price, which again adopts the principle of price spreads between various grades.
As a result, it would be logical to conclude that Parliament's intention in adopting the statute was to create a wheat pool encompassing all grades of wheat from which all profits realized on all sales, minus expenses incurred on all sales, are distribut ed to the producers as final payment.
If there should be found a logical structure to this approach, it must nevertheless be measured against the provisions of the Act itself. I should find that these provisions are consonant with the features I have outlined.
The statute states in subsection 5(3) that losses in respect of the operations of the Board under Part III in relation to any pool period, shall be paid by Parliament. I believe it is a reasonable
construction to place on this provision that it refers to operational losses covering the whole wheat pool. This would mean of course that losses on certain grades of wheat as well as profits on other grades of wheat are pooled together to arrive at a net surplus or net deficit position. I fail to see where, in providing as it does in very specific language for the recognition of price spreads be tween grades and for the distribution of profits according to grade, Parliament would not have been equally specific in requiring that losses be calculated on an identical basis.
I am furthermore of the view that an opinion more favourable to the plaintiffs cannot be found ed on subsection 26(2). The provision therein speaks of a formula for distribution of the balance remaining in the Board's account in respect of wheat produced in the designated area. The method imposed brings in of course the grade by grade entitlement to different producers but nowhere does the subsection speak of losses. It only speaks of "balance remaining in its account in respect of wheat ... purchased by it", or in the French version "le solde demeurant à son compte relativement au blé ... qu'elle a acheté". That subsection, therefore, begs the question as to the method of calculating losses. As a consequence, one must go back to the more generic provisions of subsection 5(3) to discern Parliament's intentions.
I should also observe that basic to the scheme of the statute is that the operation of the Board must be revenue neutral. I adopt the thinking of Gibson J. in Kiist v. Canadian Pacific Railway Co., (supra), that the Board has not and does not function as a price or income support agency. The only element of price support is the amount of initial payment set by the Governor in Council which constitutes a sum certain which the Board has to pay and which is unrecoverable no matter the downturn in prices over the crop year. To extend that support in the manner suggested by the plaintiffs would, in my view, constitute a form of price or income guarantee on a heads I win, tails you lose basis. The producer would not have to bear the risks of losses on his grade ofwheat but would nevertheless be entitled to all profits real ized on that grade. I should think that if such were
Parliament's intention, it would have expressed it in more unmistakable terms. Actually, Parlia ment's intention in respect of its price or income support policy for western grain producers is found in a discrete statute, namely the Western Grain Stabilization Act of 1976, and which is found in R.S.C., 1985, c. W-7.
Other indicia of the revenue-neutral stance found in the statute before me may be found in subsection 5(2) which provides that profits real ized by the Board from its operations other than operations under Part III are to be paid to the Receiver General. I note also that subsection 26(3) provides that, in addition to the initial payment paid to a producer, the Governor in Council may authorize a further "interim payment" if it deter mines that such payment may be made without loss.
I should also discern Parliament's intention in the statutory provision dealing with the initial payment. Were it not for its non-refundable fea ture or were it simply an advance payment to be debited to any producer's account, subject to final debits and credits when all the accounts in respect of each grade of wheat have been finally calculat ed, a case might be made for the plaintiffs for the calculation of both profits and losses on a grade by grade basis. Such is not the situation before me.
Finally, I should find that there is no inherent conflict between the calculation of losses pursuant to subsection 5(3) of the Act and the grade by grade system for the distribution of balances in the wheat account under subsection 26(5). The two processes, in my view, are quite distinct. The first process is consonant with the formula assuring a fair yet as high as possible non-refundable initial payment to a producer without risking high losses recoverable from the Crown. The second process is to assure that, after all is said and done, there should be a fair and equitable distribution of any surplus according to grades. Certain it is, in my view, of the kind of pooling arrangement contem plated in the statute, that the situation which faced the plaintiffs in 1985-1986 is an inherent risk
which all producers, irrespective of grades, sooner or later, have to bear. It is, in essence, a statutory quid pro quo.
The plaintiffs' action must accordingly be dis missed, with costs.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.