Posts tagged society act

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.

Changes coming to provincial law that applies to societies

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Societies, also known as “non-profits” or “not-for-profit corporations”, are the legal entities behind most of what goes on in the world of education.  For example, the Ubyssey, the University of British Columbia’s student newspaper, is the name of the central activity of a British Columbia society called The Ubyssey Publications Society.  This means the Society likely appears on the Ubyssey’s contracts and payroll slips.

The story of most societies usually begins something like this: a group of do-gooders want to do some particular good together, and they would prefer it if they could do this good as members of a collective that has a separate legal identity rather than as people who will be personally liable if something goes wrong.  They visit a lawyer and are given the option of incorporating a society under provincial or federal laws, and since educational issues are province-based more often than not a provincial society will be created.

The society might then try to take the step of becoming a charity, which means that not only have the do-gooders incorporated, but the Canada Revenue Agency has decided (after a rigorous application process) that their society should have the ability to issue donation receipts to someone who has contributed cash or property to the society’s operating budget.

Recently, the provincial government decided – rightly – that it should have another look at the main law that applies to provincial societies, the Society Act (BCLaws).  So, the Ministry of Finance started a consultation process, to see what was broken in the Society Act, what could be fixed and how that fix might play out, all with the recognition that the affairs and challenges of societies have changed much quicker than the Society Act has.  This is the purpose of the review:

The purpose of the review is to identify and address any legislative obstacles that may prevent societies from functioning fully and efficiently, and ensure that the public interest is being protected. We are seeking your input on any problems, gaps, inconsistencies or ambiguities in the Society Act and any reforms you would like considered. 

The review started at the end of 2009 (see this letter from the Deputy Minister of Finance), and since then many of the province’s 26,000 societies have chimed in with their thoughts. 

Then, in December 2011, the Ministry put out a Discussion Paper going through proposed amendments that arose because of the consultations with societies.  All of the amendments revolve around two basic issues:

  1. What corporate model is most appropriate for societies and, in particular, should a sophisticated business law framework be adopted?
  2. To what extent should the Society Act contain regulatory provisions or other rules that constrain the operation of societies?

Many of the proposals may sit well or poorly with societies in the educational community.  Student societies, like other societies with a very large constituency of members, should pay particular attention to the items on the table, such as the idea of introducing new remedies for members, special regulatory requirements for further financial disclosure and accountability and creative dispute resolution tools.

Societies and other stakeholders are invited to send their comments on the Discussion Paper by April 30, 2012 to fcsp@gov.bc.ca.

CFS BC branch fails to prevent opponent at Kwantlen from filling director’s seat

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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.

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