Posts tagged student societies

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.

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.

Legislated revenue streams for student societies

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Clark Wilson LLP released an excellent edition this morning of its “Campus Counsel” newsletter, which deals with the legislative autonomy granted to student societies.   I reproduce it in full below.

The Vancouver Province newspaper has recently reported on problems of the Kwantlen Student Association (the student society at Kwantlen Polytechnic University), which is involved in three legal actions. At the centre of these problems are questions regarding financial management by Kwantlen Student Association. As the Vancouver Sun reports, controversy and litigation regarding the financial management of the student societies of British Columbia institutions of higher learning is not new, with past instances arising at Douglas College in 2006 and at the University of Victoria in 2001. This article is a brief review of the legal framework within which these controversies arise.

In both the University Act and the College and Institute 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 student body, but does not include a provincial or national student organization. By definition, all student societies in British Columbia are created under the Society Act and, as a result, they are legal entities which are separate and apart from their respective academic institutions, with internal governance which is different from that of their institutions.

Section 21 of the College and Institute Act and section 27.1 of the University Act deal with student fees and are almost identical. In essence, the boards of colleges, institutes and universities are required to collect and remit student society fees to the respective student societies of their institutions. Neither statute stipulates the purposes for which student fees may be collected or imposes any controls on how they are administered. Both statutes permit a student society to increase student fees if authorized by student referendum.

Section 27.1 of the University Act and section 21 of the College and Institute Act were introduced pursuant to the Miscellaneous Statutes Amendment Act (No. 3) 1999. Certainly, from the perspective of business efficacy, it makes sense that student fees be collected with tuition; however, according to Hansard, there was no legislative debate focused on these sections when they were grafted onto the legislation. Accordingly, the rationale behind these provisions is not clear, although the Vancouver Province reported that the changes were the result of lobbying by the Canadian Federation of Students, requesting more autonomy. One presumes that a key objective of the legislation regarding student fees was to ensure the independence of student societies and that they have the means to achieve student goals, as determined by the students, and not the administration.

Pursuant to both the University Act and the College and Institute Act, the board of a college, institute or university may only stop collecting and remitting student fees if its student society does not make audited financial statements available or if the student society is struck off the register pursuant to section 71 of the Society Act. Otherwise, an institution’s board has no right to direct the purposes for which student fees are collected or how the fees are administered after they have been remitted to its student society. From the perspective of most students, they pay one global amount to their institution for their education and related benefits and services and often do not distinguish the amount being paid over to a student society. Many students may wrongly assume that their institutions administer or at least monitor how student fees are handled. A failure on the part of a student society to properly administer its resources may therefore affect the reputation of the institution as a whole, even though it has limited ability to manage the situation. Nevertheless, absent legislative change, the boards of British Columbia academic institutions are not in a position to intervene in their student societies’ affairs.

Some student societies work closely with their institution’s administration and share resources or facilities and agree to make payments to their institutions in respect of such arrangements. Other student societies carefully guard their independence. The legislation does not provide a specific mechanism for academic institutions to recoup the cost of services of facilities that they provide to their student societies nor does it constrain the kinds of agreements that an academic institution may enter into with its student society. As the institutions and student societies are separate and independent legal entities, they are free to enter into legally binding agreements which govern their relationship. These agreements may include binding obligations on the part of a student society to pay funds derived from student fees to their institutions for services rendered or facilities provided by the institution to the student society. These agreements may also include mechanisms pursuant to which such obligations may be satisfied from the amounts to be remitted by the institution to its student society.

In light of the controversies that have arisen in recent years, it may be time to review the provisions of the University Act and College and Institute Act which apply to student fees.

UVSS triumphs over CFS in dispute over petition to withdraw membership

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The University of Victoria Students’ Society celebrated (UVSS Chairperson’s Blog) last week’s decision (CanLII) of the Supreme Court of British Columbia overturning the decision of the National Executive of Canadian Federation of Students to decline to accept the petition of a student at the University of Victoria calling for a referendum at the school about continued membership.  Leaving aside the political issues, this case is interesting because it shows that the essential legal matter related to student representation has to do with procedure and the laws of societies.

As a brief background, all undergraduate students at UVIC, like the person behind the petition, are automatically members of the UVSS, a registered not-for-profit corporation or “society” under the Society Act (BCLaws).  The CFS is a national post-secondary student lobbying organization consisting of post-secondary student societies, including the UVSS.  Legally, the CFS is a registered society under the Canada Corporations Act (Department of Justice).  Since student organizations are distinct legal entities that act for social and not profit-driven purposes, they use the legal structure of a society, incorporating either under federal or provincial legislation.  This lets them own property, make contracts, have employees, and so on – just like regular corporations – but there are no shareholders (only “members”) and nothing that can be bought or sold like shares reflecting any ownership position.  Societies, either federal or provincial, are often confused with “registered charities” – that is, organizations registered with the Canada Revenue Agency and empowered to issue tax receipts for donations – but those are separate statuses.

Within the structure of the CFS, associations like the UVSS are “voting members” and the students within those associations, like the student behind the petition, are “individual members”.  Individual members pay an annual fee to their association, which passes the funds on to the CFS.  Students can’t opt out of membership in the CFS; this has to happen collectively by popular vote or referendum to end an association’s membership.

The story in this case is that while the student behind the petition was busy getting signatures, a separate group of students was preparing another petition effectively with the opposite purpose – to avoid any question about continued membership in the CFS.  This second petition played a significant role in the CFS deciding to reject the main petition.  The court, in this case, was asked to interpret the bylaws of CFS and decide whether the National Executive was able to decline to accept the main petition. 

Conventionally, courts don’t touch disputes dealing with internal affairs of private organizations. Here’s what courts generally consider when deciding whether to intervene:

  • the potential for courts to be clogged with disputes about the internal business of voluntary organizations (see Street v. B.C. School Sports [CanLII]);
  • whether the dispute deals with the substance of an organization’s activities, or with processes of an organization’s activities (the latter the court will deal with); and
  • whether the dispute is “of sufficient importance to deserve the invention of the court and whether the remedy sought is susceptible of enforcement by the court” (see Lakeside Colony of Hutterian Brethren v. Hofer [CanLII]).

In this case, the court found it was important to intervene because “the interests at stake are sufficiently important”, pointing to, among other things, the amount of money being sent from the UVSS to the CFS in membership fees.  The court relied on the following passage from North Shore Independent School Society v. B.C. School Sports Society (CanLII) when scrutinizing the conduct of the National Executive, like any other decision-making in voluntary associations:

36        The narrow scope for judicial review of the decisions of a domestic tribunal were noted by Dohm J. in Vancouver Hockey Club Ltd. v. 8 Hockey Ventures Inc. 1987 CanLII 2461 (BC S.C.), (1987), 18 B.C.L.R. (2d) 372 (B.C. S.C.) at 375:

The review by the court of orders made by an unincorporated association such as the N.H.L. through its president and chief executive officer (a domestic tribunal as it were) is limited. The power in no way includes the right in the court to substitute its decision for that of the domestic tribunal. The court is not the court of appeal. Rather, its power is narrow and it may only interfere if the order was made without jurisdiction (or against the rules) or if it was made in bad faith or contrary to the rules of natural justice. In addition, the courts will be reluctant to interfere with the decisions of a domestic tribunal where it is shown that internal remedies have not been exhausted. And there is even greater reluctance to interfere if the decision is based upon opinions regarding the standards of propriety and conduct appropriate for members of a particular association. Dawkins v. Antrobus (1881), 17 Ch. D. 615 (C.A.); Lee v. Showmen’s Guild of Great Britain, [1952] 2 Q.B. 329, [1952] 1 All E.R. 1175 (C.A.); Harelkin v. Univ. Of Regina, 1979 CanLII 18 (S.C.C.), [1979] 2 S.C.R. 561, [1979] 3 W.W.R. 676, 96 D.L.R. (3d) 14, 26 N.R. 364 (Sask.]. These well-known principles provide the foundation for the court’s review.

37        These cases show that the courts are prepared to interfere with the decision of a domestic tribunal where it can be shown that the tribunal exceeded its jurisdiction or failed to comply with the rules of natural justice or otherwise acted in bad faith. What these cases also demonstrate is the reluctance of the courts to intervene by substituting the court’s judgment for the judgment of the tribunal on a matter of substance within the tribunal’s jurisdiction.

The court found against the CFS, arguing that it had no basis for considering the second petition in deciding whether to accept the main petition.

The important lesson to draw from this one: student organizations, particularly ones with lots of student power or money, should be very cautious to follow their own procedures and any other legal requirements, particularly rules of good faith and natural justice.  Whether any student actually has the time or money to sue them is a different matter.

UVIC pro-life student group sues student society

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Youth Protecting Youth, a pro-life student group active at the University of Victoria, has begun a lawsuit against the UVIC Students’ Society, arguing that a decision to bar funding to the group was illegal.  The petition filed last week by YPY in BC Supreme Court asks for a declaration that all previous refusals to fund or ratify the group’s status were illegal; an order for immediate funding and ratification; an order preventing similar treatment in the future; an order for the deposit of the funds denied in the past few years, and so on. (See my previous post on this issue here.)

The BC Civil Liberties Association intends to try to become an intervenor in the legal proceedings.

Justin McElroy at McLean’s On Campus commented that restrictions on pro-life campus groups are becoming part of a common script:

Step 1: A pro-life student club (or traveling exhibition) compares abortion in some way to murder/genocide/terrible, terrible things

Step 2: The university’s student council, in all its wisdom, decides to ban said group or club from campus.

Step 3: Gnashing of teeth commences.

As McElroy points out, there have been a series of similar decisions by student governments across the country over the past couple of years, and rarely has the dispute wound up in court:

Case law on the subject is murky. In 2008, BC’s human rights tribunal dismissed a complaint by UBC-Okanagan’s pro-choice student club, Students For Life, allowing the student union to continue to deny them club status. However, at the time William Black, a law professor at UBC, said the case probably wasn’t precedent setting, arguing “It looks like it was rejected not as a matter of principle, but based on the facts.” At UBC-O, a special general meeting was held to ban Students For Life. At UVic, all decisions involving YPY have been made exclusively by the UVSS council. In America however, the Supreme Court ruled in 2000 that student clubs cannot be denied funding based on their viewpoint.

The costs of commencing an action usually require a certain basement dollar amount at stake before proceeding.  Experience shows that legal fees, up to a certain point, often total a third of the amount being claimed.  In this case, it’s all about principle. 

Two prior claims before the BC Human Rights Tribunal by similar groups have resulted in different decisions (see judgments on CanLII here and here).  YPY’s choice of how to frame its complaint is likely based on lessons learned from those experiences.  Many other pro-life groups – and student governments – will no doubt be watching this case for a sign of things to come.

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