The Canadian Federation of Students (CFS), the national student advocacy group, was again the unsuccessful party in a court judgment earlier this month, but this time it was one of the CFS’ provincial arms, a BC society called the Canadian Federation of Students – British Columbia Component (CFS-BC), that was in the docket.

The decision of the BC Court of Appeal in Kwantlen University College Student Association v. Canadian Federation of Students – British Columbia Component (CanLII) serves as another installment in the campaign brewing from several years now on many campuses against the CFS, where students and student organization are arguing that the CFS is not justifying its existence and their memberships should cease.  See here (Aldergrove Star) for local news covering the judgment.   

The fundamental legal issue in this case involved the decision of the directors of CFS-BC to deny a seat on the board to a representative of a member student organization who participated in a campaign to have the Kwantlen University College Student Association (KSA) withdraw its membership.  The KSA brought the matter to court to force their representative to have a place at the table, winning in the BC Supreme Court and Court of Appeal. 

The arguments in the dispute, like most of those in cases dealing with student organizations, involve the laws of societies, also known as non-profit corporations, which in this province are governed by the Society Act (BC Laws).  All registered societies in British Columbia must adhere to certain requirements, among them being that the members of each society must elect or appoint the society’s directors.  Where a society has failed to conduct its affairs consistent with this statute or the society’s bylaws or constitution, members have a remedy under the following provision of the Society Act:

85  (1)  Despite anything in this Act, if an omission, defect, error or irregularity occurs in the conduct of the affairs of a society by which

(a)        a breach of this Act occurs,

(b)        there is default in compliance with the constitution or bylaws of the society, or

the court may

(d)        … make an order

(i)        to rectify or cause to be rectified or to negate or modify or cause to be modified the consequences in law of the omission, defect, error or irregularity, or

(ii)        to validate an act, matter or thing rendered or alleged to have been rendered invalid by or as a result of the omission, defect, error or irregularity, and

(e)        give the ancillary or consequential directions it considers necessary.

Most societies, when confronted by a legal claim involving section 85, argue that the court should not interfere with these sorts of internal affairs, as if they are beyond the interest or purpose of the civil court system.  In this case, the court had the following response:

[32]           Section 85 of the Society Act specifically contemplates the courts making orders to ensure that the rights of society members under the society’s bylaws are not transgressed.  Where the matter brought before the court is an issue of the construction of provisions of the bylaws that define the fundamental rights of members in respect of the society’s operations, it is clear that the court has jurisdiction to intervene, and need not defer to the bylaw interpretations espoused by the society.

[33]           In this case, what is at issue is the right of the KSA to have a representative on the CFS-BC’s governing body.  It goes to the heart of the relationship between the CFS-BC and its members.  It is a question of the jurisdiction of the CFS-BC’s Executive Committee, and lies within the courts’ mandate under s. 85 of the Society Act.  Accordingly, we do not agree with the CFS-BC’s assertion that deference is due to it on the interpretation of the bylaws in issue in this case.  [Emphasis added.]

The specific portion of the CFS-BC bylaws that court was asked to interpret involved the manner in which directors are elected by members and what say, if any, the other directors have over that appointment process.  The court highlighted the following rule:

Societies may, in their bylaws, set out different schemes for the selection of directors.  Directors need not be elected in accordance with the voting rights of society members under s. 7.  Different schemes may be in place for filling the various positions on the board of directors.  Some directors may be selected by particular parts of the society’s membership, and it is not necessary that each member have a precisely equal say in the selection of directors:  Lee v. Lee’s Benevolent Assoc. of Canada, 2004 BCCA 168 (CanLII), 2004 BCCA 168, 42 B.L.R. (3d) 182.  What is essential, however, is that directors be selected in a manner set out in the society’s bylaws, which must place the selection of directors in the hands of members of the society.   [Emphasis added.]

The CFS, including its provincial arms, has been in court an awful lot over the past year, dealing with fallout from withdrawal campaigns, such as in the case of the KSA and the University of Victoria Students’ Society (CanLII), and disputes with student organizations about payment of dues, such as in the case of the Simon Fraser Student Society (CanLII).  Less than two weeks ago, the Concordia Student Union (CSU) commenced an action against the CFS regarding both a withdrawal campaign and payment of dues. 

We’ll see where things stand for the CFS when the dust settles.