T-4576-75
Walter Riske and Herbert Riske on behalf of
themselves and all others similarly situated
(Plaintiffs)
v.
Canadian Wheat Board (Defendant)
Trial Division, Primrose D.J.—Calgary, Septem-
ber 20; Edmonton, October 21, 1976.
Practice — Application for further particulars — Applica
tion to strike out statement of claim — Whether Board
answerable to private individuals — Canadian Wheat Board
Act, R.S.C. 1970, c. C-12, ss. 4(4), 5, 7, 11, 25 and 26
Federal Court Rule, 419.
Defendants applied for further particulars of the statement
of claim and for the statement of claim to be struck out and the
action dismissed pursuant to Rule 419 on the grounds that it
showed no reasonable cause of action.
Held, the application for further particulars of the statement
of claim is denied on the grounds that the information sought is
within the knowledge of the defendant. The application to
strike out the statement of claim is granted. The Board is not
responsible to individual producers, but to the Minister and
finally to Parliament. Cases where mandamus has been granted
are not analogous.
Cercast Inc. v. Shellcast Foundries Inc. [1973] F.C. 28;
Pure Spring Company Ltd. v. M.N.R. [1946] Ex.C.R.
471; Robbins v. Ontario Flue-Cured Tobacco Growers'
Marketing Board [1965] S.C.R. 431; The Queen v. Lords
Commissioners of the Treasury (1872) 7 L.R.Q.B. 387;
Taal v. Saskatchewan Medical Care Insurance Commis
sion (1963) 40 W.W.R. 8 and Rosenberg v. British
Columbia Turkey Marketing Board (1967) 59 W.W.R.
742, applied. The Queen v. Wilfrid Nadeau Inc. [1973]
F.C. 1045; Thorson v. Attorney General of Canada [1975]
1 S.C.R. 138 and Nova Scotia Board of Censors v.
McNeil [1976] 2 S.C.R. 265, distinguished.
APPLICATION to strike out statement of claim.
COUNSEL:
B. Halliday for plaintiffs.
H. B. Monk for defendant.
SOLICITORS:
Halliday & Durham, Calgary, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
PRIMROSE D.J.: This is an application by the
defendant for an order striking out the statement
of claim and dismissing the action on the ground
that it discloses no reasonable cause of action,
pursuant to Rule 419 of the General Rules and
Orders of the Federal Court of Canada. On such
an application, pursuant to Rule 419(2), no evi
dence is admissible. This is a class action by the
two plaintiffs on behalf of themselves and all
others similarly situated who carry on the business
of producing and marketing barley, set out in the
statement of claim to have the characteristic dis
tinguishing it as malting barley. The plaintiffs ask
for an accounting by the defendant, and the tenor
of the claim is that the defendant has not account
ed properly and there is a balance remaining after
deducting expenses from the sale proceeds of such
barley.
After hearing the application to strike out the
statement of claim, I communicated with counsel
requesting that the defendant proceed with its
application for further particulars which had been
filed on the 20th of May 1976. On the application
to strike out the statement of claim, counsel agreed
that if that application succeeded it would be
unnecessary to proceed with the application for
further particulars. However, I indicated that I
would like to hear the application and it came on
before me in Calgary on October 15. The demand
is as follows:
1. Particulars of the contract or other document imposing on
the Defendant the condition and duty alleged to account to the
Plaintiff or to the Plaintiff Class as alleged in paragraph 4.
2. Particulars of the contract or other documents imposing on
the Defendant the condition and duty to distribute to the
Plaintiff or the Plaintiff Class as alleged in paragraph 4.
3. Particulars of the failure of the Defendant to account to the
Plaintiff or the Plaintiff Class as alleged in paragraph 5 as
required by the condition or duty referred to in paragraph 1.
4. Particulars of the failure of the Defendant to distribute to
the Plaintiff or the Plaintiff Class as alleged in paragraph 6 as
required by the condition or duty referred to in paragraph 2.
It was agreed that the defendant by proceeding
with the application for particulars was not in any
way abandoning its application made earlier to
strike out the statement of claim as disclosing no
cause of action and it was agreed that the defend
ant reserves all its rights on that application which,
of course, is still before me for consideration. The
defendant assumes that the plaintiffs in the action
will require an accounting by the defendant in
respect of barley sold, but says that there is no
secret about how the defendant handled the barley
in question. However, deliveries were made over a
period of six years, some in car lots and some
otherwise, and some was resold by the defendant
to maltsters, so-called malting barley. The defend
ant wants to know what case it has to meet.
On the matter of particulars counsel for the
defendant refers to Cercast Inc. v. Shellcast Foun
dries Inc. [1973] F.C. 28 at 38:
Before dealing specifically with the particulars to be fur
nished it is desirable to make some general comments as to
what a motion for particulars is supposed to accomplish, always
bearing in mind the general object is the desirability of advanc
ing proceedings to trial as rapidly as possible and of introducing
precision into the pleadings, and providing for an orderly trial
in which the issues of fact the Court will be called upon to deal
with are defined and limited as precisely as possible. Pleadings
should be kept as brief as possible and plaintiff should not be
required to set out in its pleadings detailed facts which can
more properly be brought forward at trial as part of its
evidence. Neither should it be required to give details to
defendants of facts that are well known to defendants already
so that defendants are well aware of facts which they will have
to meet. On the other hand, broad generalized statements in a
statement of claim, such as the present, have the disadvantage
of opening up such a wide field of proof to plaintiff that the
trial can be greatly lengthened by the introduction of extensive
evidence of a more or less irrelevant nature that would do little
to aid the Court in determining the real issues of fact involved.
The plaintiffs base their claim for an accounting
in contract, as an action for the price of the grain
sold, on the basis that the proceeds of malting
barley have not been properly accounted for to the
plaintiff class. It attacks the administration of the
Wheat Board's operations, alleging that the
defendant has wrongfully converted proceeds of
barley to which the plaintiffs and others are en
titled. To clarify, the plaintiffs give an example of
a payment to a producer of $2.60 for No. 1 feed
barley in the crop season of 1974-1975. The plain
tiffs say this barley was sold for malting purposes
by the Wheat Board at perhaps $3.60 per bushel,
and consequently an additional dollar per bushel
was realized for which the Board should account.
The plaintiffs produced a form of permit authoriz
ing over delivery of barley-1 car lot and points
out that the seller does not know what the Board
got for his car lot of barley, but he feels he has not
got full value.
The plaintiff class is concerned with charges
made by the Board of various kinds e.g. it is said
that a sample of barley delivered to an elevator in
High River goes to Calgary by car and the freight
charges are not the rate to Calgary but that these
charges are based on the freight rate to Thunder
Bay. There are such items as storage charges and
administrative charges of different kinds including
selling which, under the Canadian Wheat Board
Act' the defendant deducts before making a final
payment, but the plaintiffs say these charges in
total are excessive. The plaintiffs refer to one crop
year in which they say five hundred million bush
els of feed barley delivered to the defendant were
sold as malting barley, and that the producers got
only a premium of 15 cents per bushel which is
normal, but allege that the Board may have made
one dollar per bushel over and above what the
producers got for their barley.
The plaintiffs require an accounting which can
only be made available by the trial of an action
which would go fully into the whole of the opera
tion of the Wheat Board's activities. The question
then is what is the duty of the defendant toward
the plaintiff class, which the defendant says is a
question of law, that there is no duty to account to
individual producers, that the marketing of the
grain is provided for in the Canadian Wheat Board
Act, and that there should be no duty to account to
individuals. All grain is pooled and it results in a
sum eventually, less borrowings, interest, storage
and other charges, and what is left is divided by
the defendant to make a proper price relationship
to all the producers. The Board's operations have
no arithmetical connection to the sale of individual
1 R.S.C. 1970, c. C-12.
grain and grain shipped by individuals is not ear
marked as such, but, as indicated, goes into a pool.
The question really resolves itself into what obliga
tion there is under the Canadian Wheat Board Act
to account to individual producers or the class of
producers.
The plaintiffs say that there is no way in which
the plaintiffs can provide additional particulars
and that these are peculiarly within the knowledge
of the defendant, which will be disclosed by the
trial of an action for an accounting by the defend
ant, and that the whole of the operation will be
considered by the Court.
It is evident that the plaintiffs claim is founded
on the allegation in paragraph 8 of the statement
of claim, that the plaintiff class relies upon the
provisions of the Canadian Wheat Board Act. The
plaintiffs are not able to give further particulars
connecting the allegations in paragraphs 4, 5 and 6
of the statement of claim and I reiterate that the
plaintiffs say this is information which is within
the knowledge of the defendant. I am not prepared
to make an order requiring the giving of
particulars.
I now proceed to consider the merits of the
application by the defendant to strike out the
statement of claim on the ground that it discloses
no cause of action.
The scheme of the Act is that the Canadian
Wheat Board is established as body corporate,
having capacity to contract and to sue and be sued
in the name of the Board. It acts as an agent for
Her Majesty in right of Canada, and its powers
under the Act are exercised by it only as an agent
of Her Majesty. It is incorporated with the object
of marketing in an orderly manner in interprovin-
cial and export trade, grain grown in Canada
(including barley). Its duties set out in section 4(4)
of the Act are:
(a) to buy, take delivery of, store, transfer, sell, ship or
otherwise dispose of grain;
(b) to enter into contracts or agreements for the purchase,
sale, handling, storage, transportation, disposition or insur
ance of grain;
(c) to enter into ordinary commercial banking arrangements
on its own credit and to borrow money on the security of
grain held by it;
(d) to acquire, hold and dispose of real and personal prop
erty, but the Board shall not acquire or dispose of any real
property without the approval of the Governor in Council;
(e) to employ such technical, professional or other officers,
clerks or employees as may be necessary for the conduct of
its business;
(f) to establish branches or employ agents in Canada or
elsewhere;
(g) to establish, utilize and employ such marketing agencies
or facilities as it deems necessary for the purpose of its
operations under this Act;
(h) to operate elevators, either directly or by means of
agents, and subject to the Canada Grain Act, to pay such
agents, commissions, storage and other charges, remunera
tion or compensation as may be agreed upon with the
approval of the Canadian Grain Commission;
(i) to authorize any officer or employee of the Board or any
other person to act on behalf of the Board in the conduct of
its operations under this Act;
(j) to act as agent for or on behalf of any Minister or agent
of Her Majesty in right of Canada in respect of any opera
tions that it may be directed to carry out by the Governor in
Council; and
(k) generally to do all such acts and things as may be
necessary or incidental to carrying on its operations under
this Act.
Section 5 provides:
5. (1) Subject to regulations, the Board shall sell and dis
pose of grain acquired by it pursuant to its operations under
this Act for such prices as it considers reasonable with the
object of promoting the sale of grain produced in Canada in
world markets.
(2) Profits, if any, realized by the Board from its operations
in wheat under this Act during any crop year, other than from
its operations under Part III, with respect to the disposition of
which no provision is made elsewhere in this Act, shall be paid
to the Receiver General for the Consolidated Revenue Fund.
(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.
Section 7 outlines the duties of the Board as
follows:
7. (1) The Board shall
(a) keep proper books and accounts of its operations under
this Act, showing such particulars therein as may be requisite
for proper accounting in accordance with established
accounting practice;
(b) with the approval of the Governor in Council, appoint a
responsible firm of chartered accountants for the purpose of
auditing accounts and records and certifying reports of the
Board;
(e) report in writing to the Minister as soon as possible after
the end of each month, as at the close of business on the last
day of that month, its purchases and sales of all grain during
the month and the quantities of grain then held by it, the
contracts to take delivery of grain to which it is then a party,
all securities then held by it and the financial result of the
Board's operations as at the end of that month, which report
shall be certified by the auditors of the Board;
(d) make such reports and furnish such information as the
Minister may from time to time require; and
(e) in each year, on or before the 31st day of March or such
other date as the Governor in Council may fix, report to the
Minister in writing, as at the close of business on the last day
of the preceding crop year, its purchases and sales of all
grain during that crop year, the quantities of grain then
owned by it, the contracts to take delivery of grain to which
it is then a party, all securities then held by it and the
financial result of the Board's operations as at the end of that
crop year and such further information as the Minister may
require, and the report shall be certified by the auditors of
the Board.
Section 11 empowers the Governor in Council
by order not inconsistent with the Act, to direct
the Board as to the manner in which any of its
operations, powers and duties under this Act are to
be conducted, exercised or performed. Part II of
the Act deals with the control of elevators and
railways and delivery of grain by producers and
the powers of the Board as to administration. Part
III deals with marketing.
Section 25 authorizes the Board to buy all
wheat (including barley) produced in a designated
area and offered by a producer for sale and deliv
ery to the Board, in an elevator or a railway car,
and to pay to producers a sum certain per bushel
basis in storage Thunder Bay or Vancouver to be
fixed from time to time "by regulation of the
Governor in Council in respect of wheat of a base
grade to be prescribed in those regulations ...."
This is done in each year and the Board fixes the
spread between grades. Each producer receives a
certificate for the net amount of grain delivered to
the Board during the pool period in which the
certificate is issued.
Section 26 of the Act provides for deduction
from the total amount received by the Board of all
moneys disbursed by or on behalf of the Board by
way of payment in respect of the grain and by way
of expenses incurred in connection with the opera
tions of the Board attributable to the said grain.
Then pursuant to section 26(2) the Board is
required to distribute the balance remaining in its
account among holders of certificates issued by the
Board, the appropriate sum determined by the
Board as provided in the Act for each bushel. The
Board, with the approval of the Governor in Coun
cil, determines and fixes the amounts to which
producers are entitled per bushel according to
grade under certificates issued pursuant to that
part of the Act.
Section 26(6) says "There is no liability on the
Board in respect of a certificate issued pursuant to
this Part, except as provided in this section."
This is the general plan for marketing the grain,
and the defendant says there is no right in anyone
to an accounting other than as shown and provided
for in the statute itself; that to demand an
accounting the plaintiffs are attempting to substi
tute a discretion that is exclusively that of the
Board. On the other hand, the plaintiffs are obvi
ously dissatisfied with the basis in which they have
been paid and insist there is a duty to account to
them and to the members of the class who have
delivered barley to the Board.
Counsel for the Board cites Pure Spring Com
pany Ltd. v. M.N.R. [1946] Ex.C.R. 471 where
the Court considered the administrative discretion
of the Minister of National Revenue in allowing
expenses in determining what was reasonable or
normal expense for the business carried on in the
case in question. At pages 487-490 the Court says:
Where there is no right of appeal from the decision of an
administrative authority, the decision is binding. This funda
mental principle was settled by the House of Lords in Spack-
man v. Plumstead Board of Works (1885) A.C. 229 at 235,
where the Earl of Selborne L.C. said:
If the legislature says that a certain authority is to decide,
and makes no provision for a repetition of the enquiry into
the same matter, or for a review of the decision by another
tribunal, prima facie, especially when it forms, as here, part
of the definition of the case provided for, that would be
binding.
Where the administrative decision involves the exercise of a
discretion and it has not been shown that proper legal principles
have not been applied the courts have recognized from very
early times that in the exercise of his discretion an administra
tive officer is not governed by the same considerations as those
that apply to a court of law in coming to a judicial decision. He
need not be confined to provable facts or admissible evidence,
but may use his own knowledge and such information as he can
obtain. The considerations that may properly influence him
depend upon the nature of the function he must perform.
The governing principle that runs through the cases is that
when Parliament has entrusted an administrative function
involving discretion to an authority other than the Court it is to
be performed by such authority without interference by the
Court, either directly or indirectly. Where a person has been
given jurisdiction to form an opinion and act accordingly, the
Court has no right to review such opinion or the considerations
on which it was based; the accuracy of the opinion is quite
outside its jurisdiction.
The defendant also relies on Robbins v. Ontario
Flue-Cured Tobacco Growers' Marketing Board
[1964] 1 O.R. 56, affirmed [1965] S.C.R. 431.
This was an application for mandamus, and a
number of the cases cited are by way of man-
damus, whereas the present application is to strike
out the statement of claim, but the defendant
submits that these authorities illustrate the princi
ple on which the Court may or may not interfere.
In the Robbins case at pages 64-65 the Court held:
The attack against the actions of the local board herein has
been limited to its alleged lack of jurisdiction to refuse the
licences or tobacco acreage allotments to the plaintiffs. A
consideration of such question should commence with the
acknowledgment that the local board could act only within the
powers delegated to it by the Board and that the Board has
only such powers or authority as has been given to it by the
Legislature. The object of the 1963 amendments to the Act was
undoubtedly to authorize the local board to restrict the produc
tion of tobacco in Ontario so that a greater surplus thereof
would not be established by an uncontrolled participation in its
production and so that the present stock on hand and the
current crop could be disposed of to the best advantage without
flooding the market therewith. The purpose of such changes in
the Act was therefore economic and not merely regulatory. In
Carroll et al. v..4 -G. N.Z., [1933] N.Z.L.R. 1461 at p. 1478,
it is stated as follows:
The Courts have no concern with the reasonableness of the
regulation; they have no concern with its policy or that of the
Government responsible for its promulgation. They merely
construe the Act under which the regulation purports to be
made giving the statute ... such fair, large, and liberal
interpretation as will best attain its objects.
In Pure Spring Co. v. Minister of National Revenue, [1947] 1
D.L.R. 501, [1946] Ex.C.R. 471, [1946] C.T.C. 169, Thorson,
P., reviews the cases dealing with the granting of a mandamus
to compel a public officer to perform an administrative function
and at p. 518 D.L.R., p. 490 Ex.C.R., p. 188 C.T.C., states as
follows:
The governing principle that runs through the cases is that
when Parliament has entrusted an administrative function
involving discretion to an authority other than the Court it is
to be performed by such authority without interference by
the Court, either directly or indirectly. Where a person has
been given jurisdiction to form an opinion and act according
ly, the Court has no right to review such opinion or the
considerations on which it was based; the accuracy of the
opinion is quite outside its jurisdiction.
In other words, the defendant submits that its
operation cannot be reviewed by the Court.
Rosenberg v. British Columbia Turkey Mar
keting Board (1967) 59 W.W.R. 742; Regina ex
rel. Central Canada Potash Co. Limited and
Schmitt v. Minister of Mineral Resources of Sas-
katchewan [1972] 6 W.W.R. 62 and Regina v.
Metropolitan Toronto Board of Commissioners of
Police, Ex parte Prosser [1971] 2 O.R. 353 are
quoted in support of this principle.
It was stated by both counsel that there is an
advantage for producers of barley if a maltster
agrees to accept barley they have produced. An
application can be made to the Wheat Board so
that particular barley is routed to the maltster and
the producer may get a premium for it, not from
the Board but from the maltster. However, since
this premium is independent of the Board purposes
and the barley is dealt with and marketed as any
other grain it perhaps is not of importance. There
is no grade of malting barley as such, although the
Order in Council No. 2716 effective the 23rd of
November 1972 [SOR/72-513] which was filed
and deals with grades of barley describes them as
"equal for malting purposes" and it can have any
grade from No. 1 C.W. to No. 3 feed. The defend
ant argues that where there is discretion given and
a statute outlines the methods of accounting, as in
the Canadian Wheat Board Act, there is no legal
obligation to account to any person (see The
Queen v. The Lords Commissioners of the Trea
sury (1872) 7 L.R.Q.B. 387). In that case The
Lords Commissioners of the Treasury received
money by Act of Parliament to defray expenses
"for prosecutions at assizes and quarter sessions,
[in England] formerly paid out of county
rates ...". Certain prosecutions took place and the
costs were taxed by the proper officers and the
Treasurer of the County paid the bills and
returned them with the vouchers to the Treasury.
The Lords Commissioners of the Treasury had
appointed officers called examiners and these offi
cers disallowed or reduced the amounts on a
number of the items returned. It was held that
mandamus would not lie inasmuch as the Lords
Commissioners of the Treasury received the
money granted by Her Majesty as servants of the
Crown and no duty was imposed on them as
between them and the persons to whom the money
was payable (see also The Queen v. The Secretary
of State for War [1891] 2 Q.B. 326). In conse
quence as an answer to the allegation in paragraph
six of the statement of claim as follows:
The Defendant has wrongfully refused or neglected to account
for, from time to time, the balance remaining after deduction of
warranted expenses from the full sale proceeds of such malting
barley, and further, to distribute the said balance among the
Plaintiff class on the same price basis.
The defendant says it is not required to account to
the plaintiffs. The plaintiffs submit they should be
permitted to proceed with the action for an
accounting, or in fact for the price of goods sold to
the Board, that they are not bound by what the
Board does if it acts inefficiently or negligently or
does not get the best price when the grain is sold.
The plaintiffs say they want proper price for their
barley, and submit that the Act does not raise any
defences against them that are conclusive.
The plaintiffs say there must be a proper price
basis for the grain sold by the Board, and equitable
distribution of the surplus. This would seem to
open up many matters of discretion; for instance
the Board is delegated not only to buy the grain
but to sell it and must determine from day to day,
and make decisions about, how much to sell and at
what price and, of course, the price fluctuates
every day. I find it difficult to accept that the
Board in its day-to-day discretion in sales could be
subject to attack or litigation in an action of this
kind on the basis that its decisions to sell at certain
prices or certain times were not equitable or not in
the best interests of the producers.
The object, of course, is to dispose of the grain
at the best possible price, and the plaintiffs repre
senting the class of so-called malting barley pro
ducers are dissatisfied with the price received and
they say that evidence is needed to establish the
facts. As stated, evidence cannot be given on an
application to strike out the statement of claim,
but the mechanics of the Board's operations is that
it deals with barley as other grain by grade, but
not as malting barley especially. What is the posi
tion then for a producer who comes along later and
complains that the operations of the Board, as far
as the price obtained for his barley, were not
proper, or that the Board did not get the best
price?
The defendant says the plaintiffs have no legal
right to proceed in an action of this kind and that
the Board is only responsible to the Minister and
ultimately to Parliament and there is no legal duty
to the plaintiffs since there is no duty imposed on
the Board under the statute that would permit an
action of this kind.
The plaintiffs rely on The Queen v. Wilfrid
Nadeau Inc. [1973] F.C. 1045 which was an
application to strike out a statement of claim on
the ground that it failed to disclose a cause of
action. The Trial Court dismissed the application
and the Federal Court of Appeal affirmed the
dismissal on the basis that it would not interfere
with such a discretionary order unless it was obvi
ous, without elaborate argument, that the state
ment of claim disclosed no cause of action. In that
case the Court pointed out that whether a question
of law should be dealt under Rule 419 or Rule
474, should ordinarily be left to the judge of first
instance. However, the question to determine here
is whether there is a cause of action, a matter
which is discretionary in the judge of first
instance.
The plaintiffs submit that the defendant is
estopped from denying that the action is anything
but for the price of goods sold and they want to
share in the negotiated price for the so-called
malting barley. As I indicated, it appears that
malting barley is not graded as such, but assuming
that it did get a special price the question arises
whether the plaintiffs have any status to attack the
operations of 'the Wheat Board. In Thorson v.
Attorney General of Canada [1975] 1 S.C.R. 138
the question arose as to the capacity or standing of
an individual desiring to take a class action
respecting the validity of federal legislation. In this
action the taxpayer commenced a class action for a
declaration that the Canada Official Languages
Act was unconstitutional and the Attorney Gener
al claimed that he had no status to maintain the
action because he had suffered no special damage.
The Supreme Court of Canada held that the plain
tiff had the standing and capacity to commence
the action but the action should be determined on
its merits.
Also in Nova Scotia Board of Censors v.
McNeil [1976] 2 S.C.R. 265, the Court dealt with
an action by an individual on behalf of the general
public respecting the constitutional validity of the
Nova Scotia Theatres and Amusements Act 2
(Board of Censors) and there the Supreme Court
of Canada exercised its discretion in granting
standing to the individual to bring the action. It
seems to me it is one thing to claim standing or
status to start an action to contest the constitution
al validity of a statute and it is something quite
different to attack a defendant, as in this case, for
the manner of conducting its operations, rather
than contest the constitutional validity of the stat
ute itself, having in mind particularly that the Act
fixes responsibility on the Minister and ultimately
on Parliament.
The plaintiffs refer to the Pure Spring case cited
supra where the Court came to the conclusion [at
page 527] that the Commissioner's findings that
the directors' fees in that case were not exclusively
and necessarily laid out or expended for the pur
pose of earning the income, ought not to stand so
that, there, the Court did in fact interfere.
2 R.S.N.S. 1967, c. 304.
The plaintiffs say the mandamus decisions, of
which a number of the cases quoted here fall into
that category, are not of much value in determin
ing the question whether the statement of claim
should be struck out because different principles
apply in mandamus. Counsel quotes Craies on
Statute Law (7th ed.) at page 232 where the
learned author says under Mandamus: "Whenever
a corporation or person, whether filling an office
under the Crown or not, has a statutory duty of a
public nature towards another person, such as to
do an act or to make an order, mandamus will lie
to compel performance of the duty at the suit of
any person aggrieved by the refusal to perform it,
unless another remedy is clearly indicated by the
statute."
The plaintiffs allege that the defendant can be
proceeded against not by way of mandamus but in
contract, for an accounting in respect to the "malt-
ing barley" price received by the Board. The plain
tiffs also allege that there would be an estoppel
here as against the Board for not having paid the
proper amount, after deducting from the total
amount received all moneys disbursed by or on
behalf of the Board pursuant to the Act.
In the view I take of the determining factor in
this application to strike out the statement of
claim, it seems the question of possible estoppel is
not important at the moment, although it is
alleged by the defendant that estoppel in any event
is not applicable as against the Crown.
The defendant also refers to Taal v. Saskatche-
wan Medical Care Insurance Commission (1963)
40 W.W.R. 8 where it was held [at page 21] "A
minister of the crown is accountable theoretically
to the Crown but practically to the legislature for
any dereliction on his part in the performance of
his duties .... He has no legal duty in his capacity
as a minister to answer therefor to any subject." In
other words, the Court cannot in an action inquire
into the considerations which motivated him or
pursuant to which he made a decision in relation to
the operations of, or carried out of, his functions as
minister pursuant, in this case, to the Saskatche-
wan Medical Care Insurance Commission.
See also Rosenberg v. British Columbia Turkey
Marketing Board (1967) 59 W.W.R. 742 at 746:
Admittedly this paragraph is an example of poor draughts
manship, but I think is sufficient for the court to act upon if the
applicant is correct in his novel submission that because of the
wording of 0. 14 this particular board is under a duty to reveal
to an interested person how it arrived at the quota allotted to
him. This submission is inevitably followed by another, namely,
that if the board does make such a revelation, its reasoning
processes can be reviewed in mandamus proceedings, and if
found not to have been on an "equitable basis" a writ of
mandamus should issue directing the board to re-allocate the
quota on an equitable basis. This submission is in collision with
at least one basic principle of the law of mandamus. Such a
mandamus hearing would be in effect an appeal on the merits;
because the mandamus order sought would be to direct a board
which had already exercised a discretion within its jurisdiction
in one way to exercise it in a different way.
In my view the applicant is not entitled to ascertain by
cross-examination of a board member the board's reasons
behind its decision: See Pure Spring Co. v. Minister of Nation
al Revenue [1946] Ex.C.R. 471, [1946] C.T.C. 171, [1947] 1
D.L.R. 501, especially at p. 522; Re United Steelworkers of
Amer. and Labour Relations Board (B.C.) (1951) 3 W.W.R.
(N.S.) 272, at 274.
While it is regrettable that a group of producers
such as the class that grows and sells barley to the
Board under the compulsory terms of the Canadi-
an Wheat Board Act should not have recourse in
the courts that would permit them to ascertain, in
the trial of an action for an accounting, the exact
state of affairs in the Board's operations, and
whether in fact the plaintiffs have been treated
fairly or may have a legitimate complaint by
reason of the actions of the Board, nevertheless, in
the view I take of this statute, the responsibility is
not to any individual producers but rather to the
Minister under the Act and finally to Parliament.
As I can find no authority for a class action of this
kind that would require such an accounting, the
action is dismissed 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.