Posts tagged Quebec

Should the mandate of student societies exclude political activism?

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Universities in Quebec are in the midst of massive student protests (Montreal Gazette) and heated political debates surrounding the provincial government’s creeping tuition increases, which started in fall 2011and will continue for several years.   Some students at universities and CEGEPs held a one-day strike in November to protest the increase, but further opposition has grown steadily.  Earlier this month, many student societies, representing hundreds of thousands of students, confronted the possibility of a week-long strike (see this from Concordia’s the Link, for example).

In response, the provincial government has refused to budge.  Some professors have joined the protests and cancelled their classes.  Most universities have remained open, but some, like Concordia, have announced (the Link) they will be closed on the main day of the strike, March 22.

There are a number of interesting issues springing up from these events, even for students, faculty and university administrators far away from Quebec.

1.    What’s up with a “strike” as a tactic of protesting tuition hikes

The tactic of students refusing to attend classes to protest tuition hikes - but rather to meet on campus and voice opposition instead – is not unique to Quebec universities.  They have happened at plenty of universities across the country, including in BC.  But the scope of support and participation in the strike in Quebec have forced the whole notion of a student “strike” into mainstream consciousness, prompting questions about the underlying validity or goal of such a tactic.

These questions stem from the distinction between a student “union” (i.e. the main word for a student society in Quebec) and a labour union.  Labour unions are, naturally, subject to labour laws, which say, generally, that workers can unionize and, when a majority of members agree, a union can go on strike, forcing all members off the job and accepting strike pay.

The main differences between a student union and a labour union are obvious.  The rationale of a labour strike is that workers are essential in producing a good or providing a service.  By striking they throw a wrench in the works of their employer’s business, putting incredible pressure on the people in charge. 

Students, on the other hand, are essential to the purposes of a university but in a very different way than workers.  They pay, generally, for a service – to be educated.  By refusing to attend class, they are denying themselves what they already paid for, thereby possibly delaying graduations and summer or other employment opportunities for an indefinite period. 

So, are student strikes intimidating and disruptive?  Of course.   But are they rationally connected to the underlying greivance?  That’s questionable.

2.    How to go about “striking” and what does it mean for students

The process and implications of a student union’s decision to strike are also significant.  Labour unions generally have strict rules for how to they can go about striking because of the far-reaching implications of a strike on a worker, his/her family and the rest of the community. 

In that light, the sort of procedure followed by several student unions (see what happened at Concordia above, for example) would very likely fall short of the necessary threshold, where a small fraction of the student union’s membership shows up and has a show-of-hands vote. 

But, of course, it may not matter if the process is deficient because the implications may be nil in any event.  A strike vote by a labour union can compel every worker off the job, but it likely has zero legal pull for a student union.  According to an anti-”strike” student group called the Student Coalition for Free Association (SCFA), this is all beyond the powers of a student union:

A student association is mandated by its members to represent the study body before the University’s administration. By law, a student association cannot prevent or forbid students from attending their classes, cannot unilaterally decide to cancel university classes and has no legal right to “strike”.
 
The current political context, in which students’ opinion is divided over the hike in tuition fees, has polarized and simplified this debate. In light of this, student associations have taken a political stance against the hike, and have thereby exceeded their mandates to the detriment of a large percentage of the students they represent.

3.    Should student unions even have a mandate to engage in political issues

Like any strong political movement, the “striking” students have spurred the creation of their own opposition, which may ultimately be more successful.  SCFA, for example, was founded by a group of law students (Montreal Gazette) at the Universite de Sherbrooke, with the following self-description:

The Student Coalition for Free Association (“SCFA”) aims to promote a voluntary, transparent, unbiased, and more democratic debate. To achieve this goal, the SCFA proposes the following: a clear separation between representing student interests from a political perspective and representing student interests from academic and student life perspectives. Accordingly, the student activities and interests pertaining to academic and student life would be represented exclusively by a General Student Association (“GSA”) specific to each university, while the political activities and interests of students would be represented by independent Student Political Associations (“SPA”‘s).
 
As such, the SCFA invites you:
 
- to revoke your current student association membership;
- to depolarize the debate concerning student tuition fees;
- to encourage and further develop this debate;
- to elaborate and establish legitimate and representative Student Political Associations. 

The head of SCFA, Philippe-Olivier Daniel, is fairly media savvy and articulate.  His group takes a very deliberate and carefully crafted position, which is better laid out in its french language site and in this petition posted on the website of the provincial legislature.  The SCFA doesn’t necessarily advocate in favour of the tuition hike but rather approaches the debate more generally in terms of whether student unions should even have the mandate to adopt a position on this issue.

When I started as an undergrad in Quebec, the student union leadership at my university was overwhelmingly focused on political issues.  It struck me very quickly that my student union leaders were claiming to act on behalf of all students when they took positions on questions that had very little to do with campus life.  I was stunned that someone I apparently hadn’t even had the opportunity to vote for or against (elections were held the previous year, long before I set foot on campus) was using the membership dues of all enrolled students to register opinions on external political issues that only a fraction of their constituents probably agreed with.

The more I looked into the issue, the more concerned I was.  I saw that out-going students had a say in elections, even though they would no longer be enrolled when the elected leaders took power.  I also saw that student union leaders with relatively unpopular political views in terms of society at large were relatively content with low voter turn-out in student elections.  My sense was that, to them, the student union was, oddly enough, a platform for a minority of students to advance their narrow political agendas and to lecture the majority of student on the minority’s fringe political views, while using the dues and representative authority of all students to accomplish those goals.

4.    What does this mean for British Columbia

The student politics at many universities across Canada involve the questions raised by the SCFA at some level.  Often, in student elections, one main slate is almost exclusively focused on local, campus issues (e.g. student transportation and housing), while the other main slate is also focused on broader political positions, including those that relate in some meaningful way to campus life (e.g. tuition hikes). 

The primary justification for student societies having a mandate for political activism is that, like any other group, students need a collective vehicle to exclusively protect their interests.  They won’t get that from any other organization or government, which means in terms of issues like tuition hikes, where there is a strong connection to campus life, the SCFA may have an uphill battle.   An easier issue for the SCFA, however, is whether that mandate should include political activism on issues largely unrelated to campus life where substantial differences of opinion exist among students, like (as a random example) Canada’s role in Afghanistan. 

That’s not to say that students shouldn’t be urged to become politically active or engage in any and every political issue, but it does raise the question of whether student societies themselves, which (unlike individual student clubs) represent and serve all students, should be wound up in those issues.

Currently, laws in BC are silent on this issue.  Under section 1 of the University Act, a ”student society” is defined as:

an organization incorporated as a society under the Society Act whose purpose is to represent the interests of the general undergraduate or graduate student body, or both, but does not include a provincial or national student organization

In other words, a student society is a provincially incorporated non-profit organization intended to look out for students’ interests.  The University Act goes on in section 27.1 to say that each university must collect student society fees for particular societies until a given society fails to meet certain financial disclosure requirements or ceases to exist.  There is nothing there about political activism.  The rest about a student society – its’ purposes, the powers of its board, etc. – is generally contained in the constitution and bylaws, which on the whole either permit political activism or encourage it.

Sometimes, people in BC assume that what happens in Quebec, stays in Quebec.  Many of the laws are different, and the language may be different, but we would be foolish to ignore the lessons of their experiences that apply to us.

McGill clarifying its brand by insisting on student club name changes

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Names, especially really, really old ones with very positive associations, have incredible value in the marketplace.  Some companies are made or broken on their trademarks (Wikipedia), and some organizations spend years in court relying on the law to protect their brand.  Universities, to a certain extent, are no exception and recognize the need at times to give a lesson on the ownership of names by curtailing how its brand is used in the public domain.

Karen Seidman at the Montreal Gazette reported last week that McGill University and the Students’ Society of McGill University (SSMU) concluded a Memorandum of Agreement regarding the use of the McGill name, which left many students unhappy, including the SSMU leadership, and has forced many student clubs to change their official names.  Maggie Knight, SSMU President, admitted that SSMU, including its umbrella of clubs, had no legal rights to the McGill name, and now many clubs will have to adapt their materials to deal with the naming restrictions.

In response to discontent from students, McGill has emphasized that it is simply insisting that student organizations have names that specify they are students and not an arm of the university itself.  Here are some examples:

  • Elections Mc-Gill will now be Elections SSMU;
  • TVMcGill will now be TVM: Student Television at McGill;
  • McGill Walksafe will now be SSMU Walksafe;
  • McGill Nightline will now be McGill Students Nightline;
  • McGill First Aid Service will now be Student Emergency Response Team; and
  • McGill Outdoors Club will now be McGill Students Outdoors Club.

It makes sense that the university would want to clarify what activities or services are being offered by students, who are vital to but independent of the administration of the university, and what activities or services are being offered by the university itself.  The beef from students comes from the fact that they now have to scramble to adjust their promotional materials to different names imposed on them by the administration, and the fact that the process involved an imbalance in negotiating power. 

Students also say that the administration wanting to reserve the sole word “McGill” for non-student affairs downgrades students as peripheral to the university’s mission and identity.  Here is an editorial on this issue from the McGill Daily, which expresses concerns about a whitling away at what or who is included in the “McGill Community”.  The editorial harps on the justification for the administration’s push being liability for damage caused by student groups (though that appears to be unconvincing from a legal perspective, so I doubt it was the main reason).

McGill has offered $25,000 to help cover the costs of any changes to banners, crests, T-shirts and so on featuring names that are no long permissible.   Here is a list of new club name options for students approaching SSMU to create a new club. 

SSMU seems to have gotten good legal advice: the university, not the student society, owns the name McGill whenever it is used in connection with the university.  Canada’s Trade-marks Act (Department of Justice) includes special rules that favour universities, among other public bodies, when it comes to their names and emblems:

9. (1) No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for…

(n) any badge, crest, emblem or mark…

 

(ii) of any university…

 

in respect of which the Registrar has, at the request of Her Majesty or of the university or public authority, as the case may be, given public notice of its adoption and use…

In other words, if a university has asked the Registrar of Trade-marks to give notice of its use of a particular trademark (and the Registrar has done just that), then no one can adopt that trademark or any trademark that could be confused for the university’s trademark.  Here is an example of one of McGill’s trademarks registered with the Canadian Intellectual Property Office (CIPO), and this is how CIPO defines a trademark:

A trade-mark is a word (or words), a design, or a combination of these, used to identify the goods or services of one person or organization and to distinguish these goods or services from those of others in the marketplace.

Have other universities gone the same route? 

The University of British Columbia (UBC) does not seem to have the same restrictions in place; here is a list of student clubs from the Alma Mater Society (AMS) website, many of which appear to violate McGill’s rules.   (The sample constitution provided to students to establish a club within the AMS envisions a name like “The ____ of UBC”.)  The same seems to apply at the University of Toronto: here is a list of student clubs from the University of Toronto Students’ Union, many of which appear to violate McGill’s rules too.

If you are interested in learning more about how UBC approaches this issue, here is a list of UBC trademarks, which includes regular trademarks and those under Section 9(1)(n)(ii) of the Trade-marks Act (discussed above).  Here is a pamphlet put out by UBC’s Office of the University Counsel about its trademarks, and here is a related university policy. 

According to the Montreal Gazette article cited above, two other major universities in Montreal may have policies similar to McGill.

Université de Sherbrooke dodges a bullet in dispute over management of inventions

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Inventions are a big business for universities, full of potential benefits and potential pitfalls.  I discussed in a previous post the issues related to ownership of inventions by university employees and the importance of having the rights of each party set our in writing.   

Université de Sherbrooke c. Beaudoin, a recent decision of the Quebec Court of Appeal, shows how a university’s failure to ensure its rights and obligations were clearly indicated in an agreement with researchers led to a costly court case that nearly ended in an unfavourable judgment.  

The story revolves around several different contracts related to research being conducted by Beaudoin and an assistant, the goal of which was a particular invention.  The inventors had a contract with the university that contained the following important terms:

  1. the university would own the invention and had the exclusive right to manage it, which included the right to assign rights to others to commercialize it; and
  2. in exchange, the university owed the inventors half of the revenues generated, and were obliged (a) to consult with the inventors about the management of the invention, and (b) to make reasonable efforts to maximize the value of the invention.

The research was also subject to a series of contracts between the university and Groupe Conseil Harland, a financial engineering company, which, in part, gave Harland an option to acquire the invention.  The purchase price payable by Harland was to be determined by complex calculations.  Eventually, the university agreed to an amendment, which involved the transfer of that option to Technologies & Bioressources Inc., an affiliate of Harland’s, at a modified price. 

This is what prompted the inventors to start a lawsuit against the university, Harland and Neptune.  They claimed the university, by signing the amendment, failed in its obligations, first, to consult them about the management of the inventions, and, second, to maximize the value of the invention.

The Quebec Court of Appeal found that the university had not failed to live up to these two obligations and consequently rejected the inventors claims.  The court held that the university had adequately consulted with the inventors – they had mentioned certain proposals in the past, which were opposed by the inventors.  Based on the language of the agreement, no further consultation was required.  Similarly, the court maintained that the university had made reasonable efforts to maximize the value of the inventions.

What lessons can be drawn from this decision?

Many commentators think that the university got off lucky on this one – it was relying on poorly defined obligations.  Universities that enter into revenue-sharing agreements with inventors should clearly define what it means to consult and maximize the value of an invention.  This decision shows that courts are happy to scrutinize these sorts of agreements, which are fraught with risks for universities.

Unreasonable accommodation or unreasonable accommodators?

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Should a school offer an ultimatum to a devout Muslim woman who cover her face with a niqab: our way or the highway?

Over the past two weeks, there has been a fascinating story emerging in Quebec that cuts to the heart of how we think our educational institutions should respond to demands imposed by students with different cultural values.  Here is a summary from Margaret Wente of the Globe and Mail:

Naema Ahmed, a 29-year-old pharmacist from Egypt, joined a language class for immigrants last August. She insisted on wearing a face veil and she sat at the back of the class so that the men wouldn’t be able to see her. (There were three men in the class of 20). For private instruction, she would retreat to a corner with the female instructor.

Tensions reportedly mounted in the class, which was also designed to help integrate the students into Quebec society. The next part of the course required the students to sit around a U-shaped table and converse. She didn’t want to do it because of the men. The school couldn’t guarantee her another female instructor. It also decided she couldn’t be taught properly unless the instructor could see her mouth. So it asked her to leave.

Faced with this ultimatum, Ms. Ahmed chose to leave and subsequently lodged a human rights complaint with Quebec’s Human Rights Commission.  The provincial government endorsed the school’s position and argued vehemently in favour of its underlying premise: our values are irreconcilable with your values – when it comes to public services, you should accommodate us, not the other way around.  This is part of a larger government initiative unrestricted to public-funded academic institutions.  Last week, the Montreal Gazette reported that the government intends to insist that all citizens uncover their faces when dealing with public officers and receiving state services.

This story has sent commentators buzzing.  Wente argued that the divide over Quebec’s position has followed linguistic lines: English Canada is disgusted, French Canada the reverse.  Julius Grey, a local lawyer that Montreal media love to quote because of his involvement with high profile human rights cases, has turned heads by delivering support for the ultimatum: “I think this is an illustration of when an accommodation becomes unreasonable”.  Face-covering is inconsistent with our values.  Integretation and developing relationships in our society require we see each other’s faces.

This debate has yet to reach educational institutions in British Columbia in the same way, but it won’t be long before it does. 

See here for more background (National Post); and here (CBC); and here (Globe and Mail).

Quebec to reform language education law deemed unconstitutional by top court

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CBC reported that Quebec’s Liberal government plans to reintroduce legislation to replace Bill 104, which the Supreme Court of Canada ruled over the summer was unconstitutional.  This marks the beginning of another chapter in the ongoing drama surrounding the language of instruction debate in Quebec.

As a very brief history, the linguistic legal battles in Quebec began around the language of legislation and the administration of justice.  Consider section 133 of the Constitution Act:

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec… The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

In 1977, the Parti Québécois government of René Lévesque (links to wikipedia) brought in The Charter of the French Language, which defined French as the sole official language of Quebec and created broad language rights for every person in the province, particularly related to commercial signs and the language of instruction for schoolchildren.  During the late 1970s and early 1980s, English-speaking lawyers in Quebec succeeded in having the Supreme Court of Canada strike down certain provisions of the Charter of the French Language as unconstitutional, specifically those dealing with the language of legislation and the administration of justice.

Chapter VIII of the Charter of the French Language deals with the language of instruction and includes in s. 73 criteria enabling certain children to receive education in English.  After the advent of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada, in Quebec (AG) v. Quebec Protestant School Boards, ruled that some of the provisions contained in the original version of s. 73 were unconstitutional.  The provincial government revised the eligibility criteria, and in Gosselin v. Quebec (AG) the Supreme Court of Canada held that those revised criteria were constitutionally valid.  Section 73 now reads as follows:

The following children, at the request of one of their parents, may receive instruction in English:

(1) a child whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada;
(2) a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada;
(3) a child whose father and mother are not Canadian citizens, but whose father or mother received elementary instruction in English in Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received in Québec;
(4) a child who, in his last year in school in Québec before 26 August 1977, was receiving instruction in English in a public kindergarten class or in an elementary or secondary school, and the brothers and sisters of that child;
(5) a child whose father or mother was residing in Québec on 26 August 1977 and had received elementary instruction in English outside Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received outside Québec…

Bill 104 was enacted to tighten the loopholes used by some parents to squeeze their children into the English school system.  In October of this year, the Supreme Court of Canada ruled in Nguyen v. Quebec (Education, Recreation and Sports) that Bill 104 is unconstitutional.  This recent announcement by the provincial government will continue the debates carried out in these decisions.

A footnote for those unfamiliar with Quebec linguistic politics: a language law remains a “Bill” in public discourse among English publications in Quebec because even after it is passed it is hotly contested.

The Duty to Accommodate: Happy to work on Christmas, but not on Yom Kippur

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The culture of Christmas in Canada is pervasive.  It is the highlight of the year for many Canadians, when work ceases for a day and families reunite.  Every provincial government has designated it as a statutory holiday, allowing Western Christians the ability to participate fully in their religious experience without any expectation of professional achievement.

But, for many Canadians, the most important days on the calendar don’t fall out in late December.  They don’t coincide with statutory holidays.  How should educational institutions – as employers of people of varied religious and cultural backgrounds – deal with employees who don’t mind working on Christmas but need to take off days at different times of year for their own religious holidays?

The main case on this issue is Commission scolaire régionale de Chambly v. Bergevin.  Three Jewish teachers employed by a local school board took a day off to celebrate Yom Kippur.  The school board had granted them a leave of absence without pay and the teacher’s union sought reimbursement for that amount.  The Supreme Court of Canada ultimately found for the union, and maintained that the school board had a duty to accommodate the needs of the teachers, short of such accommodation resulting in undue hardship (i.e. being unreasonably costly) for the school board.

The court acknowledged that the calendar of statutory holidays is discriminatory against non-Western Christian employees:

In my view, the calendar which sets out the work schedule, one of the most important conditions of employment, is discriminatory in its effect.  Teachers who belong to most of the Christian religions do not have to take any days off for religious purposes, since the Christian holy days of Christmas and Good Friday are specifically provided for in the calendar.  Yet, members of the Jewish religion must take a day off work in order to celebrate Yom Kippur.  It thus inevitably follows that the effect of the calendar is different for Jewish teachers.  They, as a result of their religious beliefs, must take a day off work while the majority of their colleagues have their religious holy days recognized as holidays from work.  In the absence of some accommodation by their employer the Jewish teachers must lose a day’s pay to observe their holy day.

It’s as simple as this: one group doesn’t have to work on their holidays, the other does.  That’s discriminatory.  The court held that this issue has to be resolved without adverse consequences to non-Western Christian employees.  Logistically and legally, this is often dealt with by scheduling changes.

Educational institutions should review Chambly and similar decisions when drafting policies relating to employees and holidays to ensure that this issue is dealt with in advance with sensitivity to non-Christian groups.

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