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UNIVERSITIES AND COLLEGES - Federated or affiliated colleges or universities

Friday, February 09, 2018 @ 8:31 AM  

Appeal by the Canadian Federation of Students - British Columbia (CFS-BC) from a decision finding that the Kwantlen Polytechnic University registrar had authority to determine the validity of student signatures on a petition served on CFS-BC by the Kwantlen Student Association (KSA) to seek a referendum to decide whether the KSA would remain a member of CFS-BC. CFS-BC was an association of university and college students’ unions. Its bylaws allowed an associated union to withdraw by way of a referendum. One of the criteria for holding such a referendum required 10 per cent support of the student members of the union seeking to withdraw. In September 2013, individual Kwantlen students collected signatures on a petition calling for a decertification referendum. CFS-BC requested the assistance of the KSA in verifying the authenticity of the names on the petition. The KSA sent a copy of the petition to the registrar, who had agreed to verify the petition. In December 2013, the registrar reported that of the 1,505 signatures on the petition, 1,387 were valid. This was more than 10 per cent of eligible student voters. CFS-BC requested additional information about the students who had signed the petition, whether their signatures had been deemed valid or not. The KSA disputed CFS-BC’s claim that its Executive Committee was responsible for determining whether the petition was in order. The registrar provided additional information to CFS-BC, including a membership list of 16,262 students who were not named. CFS-BC reviewed the list and petition and concluded that because only 1,342 of the 1,507 signatures on the petition were valid, the 10 per cent threshold was not met and the referendum would not take place. The registrar reported that the list provided to CFS-BC could not have been accurate because it exceeded the number of students enrolled at Kwantlen at the relevant time. The KSA commenced an action for a declaration that it was entitled to treat CFS-BC’s failure to hold a referendum a fundamental breach of contract. The judge accepted the registrar’s position that there were only 13,501 members of the student association at Kwantlen at the relevant time. He rejected CFS-BC’s contention that the 1,342 signatures still fell below the 10 per cent threshold, as a result of his rejection of the position that the CFS-BC Executive Committee had ultimate authority to determine whether a signature was valid. The judge found no such authority in CFS-BC’s bylaws. He found that the registrar had sole authority to investigate and verify the petition.

HELD: Appeal allowed in part. Situations in which CFS-BC had accepted the authority of registrars did not suggest that its Executive Committee had surrendered any power to review a registrar’s conclusions. The bylaws expressly set out the objective requirements of a petition. The directors did not, under the bylaws, have any privileged position to determine whether the objective requirements were met. There was no basis for the judge to find that the proponents of a petition had the right to determine whether it conformed with the bylaws. The question of whether the petition was signed by 10 per cent or more of the CFS-BC members in a local union was an objective one to be determined on the available evidence. The registrar was an independent party in the present case, but there was nothing in the bylaws suggesting that the parties would surrender their abilities to review the registrar’s work to satisfy themselves that no errors were made. The parties should have engaged in discussions to resolve the issue of the number of valid signatures.

Kwantlen University College Student Assn. v. Canadian Federation of Students - British Columbia, [2018] B.C.J. No. 49, British Columbia Court of Appeal, I.T. Donald, M.E. Saunders and H. Groberman JJ.A., January 17, 2018. Digest No. TLD-Feb52018009