Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged university of victoria
UVIC successful at BCHRT in eviction of Victoria man
May 31st
The B.C. Human Rights Tribunal (BCHRT) handed down a decision last week that put an end to an extended tenancy in student housing by a Victoria man who obtained his last degree from the university almost 15 years ago. Here is a summary of the event in a recent article in the Vancouver Sun:
Alkis Gerd’son argued the university’s attempts to evict him violated his human rights because he has a mental disability.
But in her decision handed down last week, tribunal member Barbara Humphreys dismissed Gerd’son’s complaint “because I find that it is not justified,” she wrote.
Gerd’son earned a bachelor’s degree in 1997 and hasn’t completed classes since then, but continued to live in a $655-a-month one-bedroom apartment on campus.
UVic repeatedly tried to evict Gerd’son, and served him an eviction notice in 2021, after winning its case against him in B.C. Supreme Court. The eviction process was put on hold pending the conclusion of the human rights case.
Gerd’son has been diagnosed with post-traumatic stress disorder, obsessive compulsive disorder and allergies. The province designated Gerd’son disabled in 2004, allowing him to collect monthly support, including a housing allowance.
UVic offers on-campus accommodation to students enrolled in a minimum of nine units of degree-track courses per calendar year. Once students finish classes, they’re expected to vacate residence rooms.
The university said that it allowed Gerd’son to remain in residence since 1997 out of compassion, even though he was no longer eligible.
But on Aug. 29, 2008, UVic served Gerd’son with an eviction notice based on his failure to maintain student status or pay rent.
UVic argued that it fulfilled its obligation to accommodate Gerd’son, but because he refused to move out of the residence, it had no choice but to begin eviction proceedings.
To make a long story short, the university got an order from the BC Supreme Court in September of last year requiring Gerd’son to leave (this was based on an earlier decision [CanLII] that Gerd’son was living there on a month-to-month tenancy arrangement), and the university took further steps to make that happen in December. Gerd’son has been out of the apartment since then, but the issue was still a live one until this decision was handed down.
The legal point to be decided on by the BCHRT was whether the university had discriminated against Gerd’son on the basis of mental disabilities pursuant to sections 8-10 of the Human Rights Code (BCLaws). Ultimately, the BCHRT concluded that since Gerd’son was not in a degree-granting program, and student housing was devoted toward students in a degree-granting programs, he could not have been denied student housing on the basis of his disabilities.
The decision includes several powerful quotables about the nature of student housing and the essential identity of a university as being “in the business of granting degrees” rather than providing housing. The adjudicator clearly acknowledged that universities have enough trouble arranging housing for first-year students, for whom housing is guaranteed, let alone others who are no longer in degree-granting programs. This decision serves as a reminder that although universities may be seen as quasi-municipalities, they are fundamentally about granting degrees and moving students through their buildings and out into the rest of society.
UVSS triumphs over CFS in dispute over petition to withdraw membership
Feb 9th
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.
Court upholds property tax exemption for student union space leased to commercial tenants
May 18th
Universities in British Columbia own land of considerable value. Should that land be subject to property tax and a university be assessed like any other landowner?
The answer is found in s. 54 of the University Act (BC Laws):
(1) Unless otherwise provided in an Act, the property vested in a university and held or used for university purposes is exempt from taxation under the Community Charter, the Local Government Act, the School Act, the Vancouver Charter and the Taxation (Rural Area) Act.
(2) If land vested in a university is disposed of by lease to a college affiliated with the university, so long as it is held for college purposes, the land continues to be entitled to the exemption from taxation provided in this section.
The issue then involves defining what it means for a university to hold or use property “for university purposes”.
In Assessors of Areas #1 and #10 v. University of Victoria, the BC Supreme Court held (CanLII) that student union buildings owned by a university but leased to commercial tenants were held for university purposes and thus exempt from taxation. In the decision, the court considered buildings used by the student unions of UVIC and SFU, particularly portions of those buildings leased to commercial tenants, like Travel Cuts, fast food outlets, medical and dental clinics, etc. These are businesses designed to cater directly to students but they are distinct from other businesses owned and operated by the student unions.
Hence the question: are those portions of the buildings used by commercial tenants being held or used “for university purposes”?
In one corner, the Assessor argued that a university purpose involves academic pursuits or, at the very lease, those non-academic activities that are critical to facilitating academic goals. In the other corner, the universities and student unions argued that these businesses provide an ancillary benefit to students and form part of the multi-faceted elements of modern university life; in this way, the spaces in which they operate are being held for university purposes.
To interpret the meaning of the words “university purposes”, the court went back to the basics and discussed what it means to be a university:
Canadian universities today are multifaceted institutions that require a diverse array of services to advance their broad objectives. They operate in a competitive environment. In order to achieve their objectives and perpetuate as relevant institutions, they must reasonably service the needs and aspirations of their faculty and their diverse student bodies. Student and faculty recruitment and retention play a significant role in the success of a university. It is surely trite to observe that the attendance of students is the most vital component of a university; without them, a university is little more than a languishing collection of resources, vacant classrooms and idle professors. I agree with the Board’s remarks that student societies play an important role in assisting universities in recruiting students by contributing to a student’s enjoyment of university life in a variety of ways. To that end, universities need to provide more than the rudimentary features of higher learning; more than lecture halls and labs. Modern universities commonly have extensive athletic and recreational facilities, as well as facilities aimed at promoting social interaction among the students, the faculty, and the students and faculty together. As observed by the Board, universities also require considerable human support services such as housing, transportation, food services and health care clinics to reasonably attend to the needs of their students and faculty.
The court went on to reject a narrow view of the purposes of a university. Student unions are responsible for managing student affairs, and they are often granted space in buildings owned by universities for that purpose. Accommodating student needs frequently requires inviting commercial tenants to rent space and set up shop on university property. The court rightly saw this fact as a simple element of what it means to be a university today.
UVIC Students’ Society votes to revoke status of pro-life club
Feb 15th
The University of Victoria Students’ Society (UVSS) voted last week to revoke the club status of Youth Protecting Youth (YPY), a pro-life group on campus. The move caps a stormy series of events between the UVSS and YPY. In October 2008, the UVSS denied club funding for YPY but maintained its status as a club. This decision was repeated in the fall of 2009, and activism surrounding abortion at UVIC reached a peak in October 2009 with a well-attended public debate on campus. Erin Millar at Maclean’s has recent coverage here and some older coverage see here.
The dispute between the UVSS and YPY has cast a wider scope of interest with the B.C. Civil Liberties Association (BCCLA) throwing its hat into the ring in favour of YPY, condemning the UVSS’ conduct.
The UVSS’ position appears to be based on its powers under Part E (Discipline) and Part F (Harassment) of Part III of the Board of Directors Policy Manual. Anyone who feels that a student club has engaged in harassment can complain to the Clubs Council committee of the UVSS. The Clubs Council investigates and reports to the UVSS board of directors, which is entitled to discipline the club by taking certain measures, including denying funding or revoking club status. The UVSS has stated that in this case it is responding to such a complaint in relation to YPY.
The problem is, according to the BCCLA, that it appears the decision was taken as a result of the premise behind YPY rather than particular conduct (i.e. what it is rather than what it does). This, simply put, is anti-democratic. Now, as Erin Millar suggests, the battle might shift to the courtroom.
The UVSS’ decision raises two interesting questions:
- what is the role of the university – UVIC – in all this; and
- how will the dispute likely get resolved if it did go to court?
First, despite the obvious connections, there probably isn’t much of a legal relationship between this decision and any claim by the students in YPY that UVIC has done something wrong or should do something different now. In general, student unions are societies independent from the universities on which they operate (see here as an example). The members of each society – namely, students at a particular university – contribute fees to provide funding, part of which is allocated to various student clubs. When the powers that be within the society determine a certain club has been acting out of line, they have the discretion to turn off the tap.
Politically, as well, it is generally unwise for a university to wade into a dispute between student groups unless unrest is involved. UVIC probably doesn’t want to touch this one with an opening ceremony length torch.
Second, the preliminary hurdle here is whether the dispute will make it to court. Law is expensive. Money is something many students and campus groups don’t have. But if this dispute did get before a judge, the decision would depend largely on the type of claim launched by YPY (or BCCLA). One the one hand, they may claim that the UVSS’ decision was inconsistent with the Society Act (British Columbia), which governs societies. On the other hand, they may launch a complaint under the Human Rights Code (British Columbia) before the B.C. Human Rights Tribunal, alleging the UVSS’ course of action constituted discrimination. If that happens, both sides will likely look at Gray v. UBC Students’ Union, where the court rejected the claim of a pro-abortion group that it had suffered discrimination on the basis of religion. The court there found that the student group had been shut down because of its offensive conduct and nothing else (but see also this decision). As well, a court might insist first that YPY exhaust any dispute resolution mechanism available within the UVSS or UVIC before approaching a judge.
Time will tell.
