Search      Browse   



What the RCMP would not investigate

 

The Boyko v. Canada (Minister of Agriculture)[2000] F.C.J. 399 case was heard January 14, 2000 and the order delivered April 4, 2000 by Judge Rouleau J.. He stated in part that his reasons for the order was based on the defendant’s evidence, which I believe now, mostly misled the court after reviewing Rasa Rutkauskas cross-examination. The court decision reads in part as follows:

“15. In the present case, the Guidelines in question are clearly a studied policy formulated by the parties to the NISA Agreement after public consultation and years of deliberation by NISA officials and committee members. They are of general application to all of the voluntary participants in the NISA program. There is no evidence here of bad faith or reliance having been placed upon irrelevant or extraneous considerations in the development of the Guidelines. Although the present application is couched in terms as a direct attack on the recommendation of the Appeal Sub-Committee to apply the policy, the real essence of the applicants’ complaint is with the policy itself; in other words, they take exception to the fact that the term “eligible net sales” does not include grain transportation costs to port and argue that the Guidelines in some way constitute an unlawful amendment of the NISA Agreement. However, all of the evidence before this court clearly established that the meaning of “eligible net sales” has never, since the inception of the program to the present, included grain transportation costs to port nor has the NISA Agreement ever been formally amended to reflect any change of that nature. In short, the Guidelines continue the same policy as has always existed within the NISA Program.”

 

The listed Roger Eyvindson in Appendix B swore in his affidavit in the Boyko case which reads in part:

“26………”As a result, this matter was referred to the representatives of the parties to the Federal/Provincial Agreement who approved the Point of Sale Guidelines as outlined in paragraph 25. I attached a copy of the relevant record of decision as Exhibit “D” to this my affidavit.”
and
“35. The Point of Sale Guidelines approved by the parties to the Federal/Provincial Agreement on October 24, 1994, (Exhibit D”) are the current Point of sale Guidelines and were the Point of sale Guidelines in the stabilization years 1996 and 1997.” )……

The Boyko case judicial review applicants, I believe would not have been aware of the letters sent to my office and the Income Tax Act Ruling received by the Respondent (who is the Defendant in this matter) prior to their case initial hearing in January 2000. The Respondent (who is the Defendant in this case) I believe was clearly aware that it was not the authorized representatives of the parties listed at page 10 and 11 of the NISA or the NNC members of Schedule C adopting the point of sale guidelines at the October 24, 1994 teleconference call if they knew anything about the NISA.

 

The following excerpts are from the Defendant’s letters and read in part:

Letter dated July 14, 1998 Bob Nawolsky sent to Farm Business Consultants.

“The Sub-Committee presented the following motion to the NNC which consists of ten producer representatives, four federal representatives, and one representative from each participating province:”……
“The NNC passed the motion in October 1994 and recommended that these guidelines be in place for the 1994 and 1995 stabilization year.”…….
“These sections of the Agreement provide the authority for the Administration to implement the point of sale guidelines adopted by the NNC.” (National NISA Committee)…….
“You also question the directions in the guide for reporting expenses such as freight as a commodity purchase rather than eligible expenses. While these expenses are reportable to Revenue Canada for income tax purposes, they are not eligible for NISA as they occur after the point of sale.” (NISA Amendment 3.1.1 states “ The statement must detail all income and expense information otherwise reportable for farm business income tax purposes and necessary for the calculation of deposit and withdrawal entitlements under this agreement.” and was signed by Canada’s Minister 14 May 93 and Saskatchewan’s Minister September 22, 1994).

Letter dated June 1, 1998 Bob Nawolsky sent to B. Jolly Accounting (Saskatoon) Ltd.

“ A working group was initiated by Agriculture and Agri-Food Canada, in cooperation with industry, to review the point of sale issue and make a recommendation to the National NISA Committee (NNC) at its meeting held in September 1994.”……
“The NNC passed the motion in October 1994” (not the stated parties to the NISA Agreement listed at page 10 an 11 of the NISA as sworn by Roger Eyvindson) “ and recommended that these guidelines be in place for the 1994 and 1995 stabilization years. In November 1996, the NNC recommended” (new recommendation) “the extension of the guidelines for the 1996 and 1997 stabilization years.”…… “In response to concerns expressed by these grain producers, the NNC at its meeting held in February this year” (1998) “ recommended that the current point of sale guidelines only be extended to the 1998 stabilization year.” (cancelled) “The Point of Sale Sub-Committee is currently analyzing alternative point of sale guidelines which are to be implemented with the commencement of the 1999 stabilization year. The Sub-Committee is to present its recommendation at the NNC meeting scheduled for November 1998.” (new recommendation) “In your letter you asked for the specific section of the Agreement that pertains to the point of sale guidelines. As the Agreement embodies the fundamental guiding principles of the NISA Program, not all policies,” (stated as recommended and adopted by the NNC) “including the point of sale guidelines, are specifically referenced in the Agreement.”………”These Sections of the Agreement provided the authority for the Administration to implement the point of sale guidelines adopted by the NNC in October 1994” (not the parties to the Agreement as misrepresented later in the Boyko case affidavit evidence of Roger Eyvindson)…….”Conversely, participants using producer cars are directly responsible for the costs and risks involved in shipping their grain to the export terminal and therefore are allowed to include the associated costs in the calculation of their eligible net sales.” (special treatment and more benefits) “This interpretation has been used consistently from the advent of the Program for the 1990 tax year to present.” (freight never allowed since inception)

 

Letter dated December 23, 1998 Bob Nawolsky sent to B. Jolly Accounting (Saskatoon) Ltd.

“The following point of sale guidelines were recommended by the National NISA Committee on October 24, 1994.”……… “The producer representatives on the NNC were all NISA participants, but a recorded vote of the NNC was not taken on the recommendation. The guidelines were adopted following a vote by program signatories in accordance with Section 2.5 of Schedule C of the NISA Federal/Provincial Agreement. Section 2.5 requires the chairperson of the NNC to refer matters of significant financial impact to program signatories for approval.” (now a vote by program signatories and NISA Section 2.5 required) “As a result, only Canada and the provinces voted on the motion to implement the point of sale guidelines. Canada, Manitoba, Ontario. Quebec, Nova Scotia and Newfoundland supported the motion. British Columbia, Alberta, Saskatchewan, Prince Edward Island and New Brunswick did not support the motion”. ……..”The participating governments have determined that program benefits shall be calculated in accordance with the point of sale guidelines.” (more contradiction and misrepresentation)……”Under the point of sale guidelines,” (which are not in the NISA) “the revenue and expenses associated with moving grain from the local elevator to port are not relevant for NISA purposes as, under the guidelines, a sale has already taken place. This does not affect producers’ responsibility to report such revenue as farming income for income tax purposes and to be able to deduct the expenses.” (NISA Amendment 3.1.1 states “ The statement must detail all income and expense information otherwise reportable for farm business income tax purposes and necessary for the calculation of deposit and withdrawal entitlements under this agreement.”).

Letter dated June 11, 1999 Bob Nawolsky sent to B. Jolly Accounting (Saskatoon) Ltd.

“I have also enclosed a copy of subsequent Agreement amendments establishing ratification by the required majority of signatories.”…….”The point of sale guidelines were not adopted by amendment of the Agreement as they do not amend the Agreement. In accordance with Section 2.5 of Schedule C of the Agreement, a recommendation containing proposed guidelines was referred to signatories at a meeting attended by representatives of all eleven program signatories on October 24, 1994.” (now representatives). “A majority of signatories, namely, Canada, Manitoba, Ontario, Quebec. Nova Scotia and Newfoundland voted to support the recommendation. Please refer to Appendix B for a list of federal and provincial representatives on the NNC” (the NNC also consisted of 10 producer representatives as stated by the Defendant) “at that time who voted on behalf of signatories.”
Since the adoption of the point of sale guidelines, all grain producers, including those from Ontario, have been required to report revenues net of transportation and elevation costs in accordance with the guidelines.”(have not always existed as misrepresented)……

 

Letter dated January 14, 2000 sent to B. Jolly Accounting (Saskatoon) Ltd.

Section 6.2 of the Agreement states that Canada is responsible for the administration of the Program with the advice of the NNC. Section 3.2” (not the required Section 2.5 now) “of Schedule C allows the NNC to advise the Administration on issues relating to the ongoing operation of NISA and section 6 allows the NNC to establish and appoint any sub-committee needed to assist in carrying out its responsibilities. These sections of the Agreement provide the authority for the Administration to implement the point of sale guidelines adopted by the NNC in October 1994.” (the 10 equal voting NNC producer representatives not allowed to vote)…..”Freight and elevation costs are not, nor have they ever been described as allowable eligible expenses for NISA purposes, except in cases where farmers load their grain directly into producer cars for shipment to export position.” (not all grain sales are treated the same).

These are the false representations and contradictions of the Defendant that I have noted in the cross-examination of Rasa Rutkauskas and read in part as follows:

Cross-examination on Affidavit of Rasa Rutkauskas by Mr. Zakreski
dated the 29th day of September, 2005

Question (Q) Answer (A)

 

66

Q And they were reminded that their NISA applications should mirror up with their income tax information, correct?

A Correct.

251

Q Okay. But the agreements speak for themselves as to what they define and don’t define, correct?

A Correct.


292

Q I’d like you to refer to your Affidavit sworn January 12, 2004, paragraph 3 of your Affidavit. Once again this is a case of somebody preparing an Affidavit for you and you agreeing with it, correct?

A Correct.

306

Q Thank you. In paragraph 6 of your Affidavit you state, After further review of the guidelines, the NNC, which is the National NISA Committee, adopted the following motion at their October 24th, 1994 meeting. Do you see where you say that?

A Yes.

307

Q You got that from documents; did you not?

A Yes.

308

Q Because I would suggest to you that that’s not correct what you state there?

A Well the motion was presented to the NNC, and it was the signatories that were—the program signatories that voted on the motion.

309

Q But not the National NISA Committee?

A Who voted on the motion?

310

Q Right.

A It was the program signatories.

316

Q There’s a recording of a vote on page 2.

A Yes, so the day it shows Monday, October 24th is when the date the vote would have been taken.

320

Q Ms. Rutkauskas? And you’ll agree with me that the National NISA Committee consists not only of the provincial and federal representatives, but also producer representatives?

A Correct.

321

Q And they didn’t vote on this motion?

A That’s correct.
MR. HAY: The producers did not.

328

Q On page 1 of the producer handbook the following statement is made, This producer handbook was developed to explain the NISA program to participants. It contains general information only and is not intended to be a substitute for the legislation, regulations and federal/provincial agreements which are the legal authorities for NISA. Do you see where it says that?

A Yes.

329

Q You agree with that of course?

A Yes.

330

Q In other words, it’s the legislation, regulations and the federal/provincial agreement that governs matters such as eligible net sales?

A I guess, yes, it defines eligible net sales, the agreement.

345

Q Did any of the subsequent amendments deal with the point of sale guidelines?

A No because that’s not contained in the agreement.

349

Q MR. ZAKRESKI: And getting back to the motion that we referred to earlier that was attached to your earlier Affidavit, being the matter that was referredto the signatories of the agreement, you’ll agree with me that those particular individuals who voted were not actually the ministers, but were simply the provincial and federal representatives on the National NISA Committee?

A That’s correct.