2016 ONSC 4503 COURT FILE NOS.: 15-65640/14-62744 DATE: 2016/07/08
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
University of Toronto Graduate Students’ Union Ewa Krajewska, Suzanne Kittell for the Applicant, University of Toronto Graduate Students’ Union Applicant
– and –
Canadian Federation of Students – and – Canadian Federation of Students - Ontario Todd J. Burke, Sarah Willis for the Respondent, Canadian Federation of Students Tudor Carsten for the Respondent, Canadian Federation of Students – Ontario Respondents
A N D B E T W E E N:
Canadian Federation of Students – and – Canadian Federation of Students - Ontario Applicants
– and –
University of Toronto Graduate Students’ Union Respondent
Todd J. Burke, Sarah Willis for the Applicant, Canadian Federation of Students Tudor Carsten for the Applicant, Canadian Federation of Students – Ontario Ewa Krajewska, Suzanne Kittell, for the Respondent, University of Toronto Graduate Students’ Union
HEARD: February 11, 2016
Reasons for decision
SHEARD J.
OVERVIEW
[1] This is a dispute between the Canadian Federation of Students (“CFS”), the Canadian Federation of Students - Ontario (“CFS-O”), and the University of Toronto Graduate Students’ Union (“UTGSU”) with respect to a referendum conducted on November 24-28, 2014 on the issue of UTGSU’s continued membership in the CFS and the CFS-O.
[2] Members of the UTGSU sought a referendum on whether or not to decertify from the CFS and the CFS-O (“the Referendum”). The CFS and CFS-O jointly submitted written materials and for the purposes of this decision, I refer to CFS and CFS-O collectively as “CFS”.
[3] Although there was an Application brought by the CFS and a Counter-Application by the UTGSU, the parties agreed that the Applications should be heard as one and that the UTGSU should be treated as the Applicant.
[4] This process has had a history. The parties were engaged in litigation leading up to the holding of the Referendum. This history may explain the large volume of materials submitted on the Application, including transcripts of cross-examinations on the supporting affidavits, and the obvious investment of significant time and money in these proceedings.
[5] The litigation appears to have been acrimonious and, based on the materials before me, has consumed costs completely disproportionate to the amount at stake for the estimated 16,056 individual members of the UTGSU.
[6] UTGSU pays approximately $225,000 annually in fees to CFS. Assuming a membership of 16,056, the annual cost to each UTGSU member is about $14.00. There must be at least five years between Referendums. Assuming that a member of the UTGSU affected by the Referendum remained a member of the UTGSU for the five years between votes, the cost to that member of CFS membership would be approximately $70.00.
[7] By any standard, $14.00 per year or $70.00 over five years is a very small amount. This Application appears to be a battle of principles from the perspective of the UTGSU. By contrast, for the CFS, which collects $14.00 from 16,056 members for five years, the dispute is one with a significant economic impact.
[8] The Referendum was governed by the CFS Bylaws. The Bylaws required 10 percent of UTGSU students to vote in the Referendum in order to meet quorum. Provided that quorum was met, in order to be decertified from the CFS, two-thirds of the votes had to be in favour of decertification.
[9] Voter turnout in the Referendum fell short of the quorum requirement by seven votes: 1599 votes were counted and 1606 were required for a quorum. Three days after the results of the Referendum were announced, CFS brought an Application for a declaration that UTGSU remain a member of the CFS and the CFS-O.
[10] UTGSU brought a counter-application challenging the conduct of the Referendum. It argues that certain decisions made by the Chief Returning Officer (“CRO”) appointed by CFS, “were unreasonable and incongruent with UTGSU’s legitimate expectation that the CRO would exercise his discretion under the Bylaws in a manner that took into account the interests of individual students and their enfranchisement.” The UTGSU further asserts that, but for the CRO’s unreasonable exercise of discretion, quorum would have been met.
[11] UTGSU takes issue with the two main decisions made by the CRO: (i) his refusal to place a polling station at the Aerospace campus, located one hour away from the main University campus (“UTIAS”); and (ii) his refusal to allow voting by mail-out ballot.
[12] The UTGSU argues that the 180 students at UTIAS, the 190 students who were studying abroad, and the 290 students enrolled in online courses were unable to vote in the Referendum. They submitted affidavits from eight such students indicating that, had they been able to vote, they would have. Had only seven of the students been allowed to vote, and voted, the Referendum would have achieved quorum.
[13] Of the 1599 votes cast, 519 were “yes” – in favour of staying in the CFS and 1052 were “no”– in favour of decertification. The UTGSU argues that even if the eight students who wanted, but could not vote, allegedly as a result of the CRO’s unreasonable exercise of his discretion, the “no” vote would have met the two-thirds of the quorum and prevailed on the Referendum.
The Facts
[14] Set out below is a summary of the facts important to these applications. I have borrowed liberally from the parties’ lengthy and detailed Facta.
[15] UTGSU is an incorporated, not-for-profit organization comprised of graduate students at the University. By virtue of their enrolment in a graduate studies department, all graduate students at the University are automatically members of UTGSU for the full duration of their studies. There were an estimated 16,056 UTGSU students in the 2014-2015 academic years. UTGSU is required to collect and remit membership fees to CFS.
[16] The CFS is a not-for-profit corporation whose membership is composed of student associations from universities and colleges across Canada. The CFS’ member associations are, in turn, composed of individual student members.
[17] The CFS-O is the provincial component of the CFS. The CFS-O is a separate entity from the CFS and is governed by its own set of Bylaws. CFS operates under a mandate to “organize students on a democratic basis in advancing our own interests, and in advancing the interests of our community”. CFS-O’s mandate is to further this goal.
[18] The CFS Bylaws and the CFS-O Bylaws (collectively the “Bylaws”) set out the rights and responsibilities of both CFS and CFS-O members. They also dictate the steps that must be followed to hold a certification referendum.
[19] As a result of a dispute and litigation and a negotiated resolution regarding a decertification Referendum, the parties agreed that a UTGSU decertification vote would proceed on November 24-28, 2014, in accordance with the Bylaws.
[20] The Referendum took place between November 24 and November 28, 2014. The ballot question was as prescribed by the CFS Bylaws. The number of registered UTGSU students as of November 14 was 16,056.
[21] The Bylaws authorize and direct CFS and CFS-O to retain a Chief Returning Officer (“CRO”) to oversee the conduct of the Referendum. Stephen Littley was retained as CRO (“Littley”). Littley is a British Columbia lawyer and had acted as CRO on other referendums involving the CFS and CFS-O.
[22] Littley was cross-examined on his affidavit sworn for these proceedings. He was asked why he agreed to be appointed as CRO. He stated it was: Experience. So wanting to be involved was something where I could use impartial judgment, something I could probably use in the future if I ever made an attempt at the bench. (Q. 61, p. 14)
[and] I had to feed my family so it was income. (Q. 63, p. 14)
[23] The CFS Bylaws set out the CRO’s responsibilities with respect to overseeing Referendums. Specifically, CFS Bylaw 1, section 6(c) states:
Chief Returning Officer For each referendum on continued membership, the National Executive shall recommend an individual to serve as the Chief Returning Officer. The Chief Returning Officer’s appointment is subject to ratification by a general meeting of the Federation. The Chief Returning Officer shall oversee the referendum and be responsible for: i. establishing the notice requirement for the referendum in accordance with Bylaw I, Section 6.d and ensuring that notice is posted; ii. establishing the campaign period in accordance with Bylaw I, Section 6.e; iii. approving all campaign materials in accordance with Bylaw I, Section 6.f and removing campaign materials that have not been approved; iv. deciding the number and location of polling stations; v. setting the hours of voting in accordance with Bylaw I, Section 6.g; vi. overseeing all aspects of the voting; vii. counting the ballots following the vote; and viii. establishing all other rules and regulations for the vote.
[24] Bylaw II, section 5(e) of the CFS-O Bylaws states:
Chief Returning Officer For each vote to decertify, a Chief Returning Officer shall be appointed in accordance with the Bylaws of the Canadian Federation of Students, The Chief Returning Officer shall oversee the referendum and be responsible for: i. Establishing the notice requirement for the referendum in accordance with the Bylaws of the Canadian Federation of Students; ii. Establishing the campaign period in accordance with the Bylaws of the Canadian Federation of Students; iii. Approving all campaign materials in accordance with Section 5.b of this Bylaw and removing campaign materials that have not been approved; iv. Deciding the number and location of polling stations; v. Setting the hours of voting in accordance with Section 5.e of this Bylaw; vi. Overseeing all aspects of the voting; vii. Counting the ballots following the vote; and viii. establishing all other rules and regulations for the vote.
[25] As part of his mandate as CRO, Littley created rules for the Referendum.
[26] The CRO has the responsibility and discretion to determine the number and location of polling stations, setting the hours of voting, and establishing other rules and regulations with respect to the vote.
[27] To assist him, Littley hired a number of Deputy Returning Officers (“DRO’s”), including Nila Zameni. She had assisted Littley on a prior referendum.
[28] In choosing the location of polling stations, Littley consulted with or obtained information from the University of Toronto Administration; the DRO’s; a CFS-O staff person; Joshua Newman, a member of the UTGSU Litigation Committee (“Newman”); Brad Evoy, Chair of the “No” Campaign (formerly of the UTGSU Litigation Committee), and he toured the campus. Littley did not visit UTIAS.
UTIAS
[29] UTIAS is the primary location for research and work conducted by Aerospace Sciences and Engineering graduate students. UTIAS is a University of Toronto facility, located approximately one hour’s commute by public transit from the nearest Referendum polling station.
[30] General elections had been held in 2014 and 2015 and a polling station was open at UTIAS for a limited number of hours. In the 2014 election, 12 votes were cast at the polling station located at UTIAS. The total number of students who voted in that general election was 179. In the 2015 election, at the polling station at UTIAS, again open for only two hours, seven votes were cast. At all the other campuses a total of only 283 votes were cast.
[31] There were two requests for a polling station at UTIAS. One came on November 18, 2014 from Newman. A second request came from Shu Zhang, a UTIAS student, who wrote to the CRO and DRO on November 17, 2014.
[32] On November 19, 2014, Littley responded to Newman: We may have less polling stations, but they are open for 5 days, 10 hours a day providing significantly more opportunity for students to vote compared to the UTGSU elections. These two locations are within an hour of the closest polling station by transit, and less than one hour by car.
[33] Newman protested that the travel time to the closest polling station was unreasonable due to the UTIAS students’ “particularly rigid schedules which do not allow them to take more than two hours off in the middle of the day to cast a ballot”.
[34] Littley did not reconsider his decision. There is evidence that one UTIAS graduate student was unable to leave the UTIAS’ laboratories between the hours of 10:00 a.m. and 7 p.m. on any day during voting week and could not vote in the Referendum.
[35] Littley’s reasons for deciding not to have a polling station at UTIAS included that: a. there were long hours at other polling stations; b. past voter turnout at UTIAS was small in number; c. the cost and logistics associated with having a DRO attend to set up and retrieve the ballot box at each location; d. the fact that the other polling stations were accessible by transit for both UTIAS and Sunnybrook students; e. he felt he could not spare a DRO to attend at UTIAS and concluded that the extended voting hours and days would permit the UTIAS students to vote; and f. Littley believed that UTIAS students would be able to vote at one of the other polling stations.
Mail-Out Ballots
[36] The Bylaws grant the CRO the discretion to decide on whether to allow voting by mail-out ballot. There is no reference to voting by mail-in ballot in the Bylaws. CFS ByLaw 1, Section 6.g.I. states: Voting must be conducted by paper ballot and cannot be conducted in any other manner. Voting must be conducted at voting stations or, subject to the agreement of the Chief Returning Officer, by mail-out ballot.
[37] Littley determined that neither mail-in nor mail-out voting were appropriate. In order to facilitate voting by mail-out ballot, the University Administration would be required to provide the CRO with a list of students and the students’ address information. Based on the Administration’s refusal to provide the CFS with even a list of student names, Littley believed that the Administration would not provide the requisite information.
[38] On cross-examination, Newman acknowledged that the UTGSU was aware that the University Administration was not going to provide the names and addresses of UTGSU students.
[39] As a result of her discussions with the Administration, DRO Zameni also believed that the Administration would be opposed to sharing student information in order to facilitate voting by this method.
[40] During the Referendum, Littley received two or three individual student requests but determined that mail-in voting would not be appropriate.
[41] Although Littley had allowed mail-in voting in a previous referendum at the University of McGill, he did so only after receiving approximately 36 individual student requests. In that case, the McGill University Administration had provided Littley with the entire list of eligible voters including their names, departments, and student numbers.
[42] On cross-examination, Littely stated that he allowed mail-in ballots for the McGill referendum following an “outcry” from a number of students.
Issues to be Determined
[43] The UTGSU identifies the following issues to be determined by this Court: Whether there is an implied term in the Bylaws that if mail-out ballots are not permitted, those students who are unable to vote by paper ballot should not be counted towards quorum; Whether the impugned decisions of the CRO were unreasonable and whether he exercised his discretion in accordance with the implied duty of good faith; and Whether, but for the CRO’s unreasonable decisions and breaches of duty, quorum on the Referendum would have been reached.
[44] The CFS identifies the issues as: a. Was quorum met as required by the bylaws? b. Did the CRO exercise his discretion under the bylaws in bad faith or in an in an unreasonable manner such that this Court should intervene in his decisions?
Issue #1: Can the Court Imply a Term in the Bylaws?
[45] The parties appear to agree that the nature of the relationship between members of the CFS, CFS-O and the UTGSU is contractual.
[46] I accept the principles as set out by Justice Beaudoin in the Canadian Federation of Students/Fédération canadienne des étudiant(e)s v. Cape Breton University Students’ Union, 2015 ONSC 4093 and in particular at paragraphs 115 and 116: At 115: … The courts have consistently characterized the relationship between a corporation without share capital and its members as contractual in nature. ( London Humane Society (Re), 2010 ONSC 5775 ) … At 116: Modern principles of contractual interpretation require the contracts be interpreted in a “practical common sense” way and that particular words and provisions must be read in the context of the whole contract, its purposes, and in harmony with the commercial context. … Ontario courts similarly hold that the interpretation of the CFS Bylaws must have regard to the total context of each provision of the Bylaws. (Canadian Federation of Students (Ontario) v. Students Federation of the University of Ottawa, [1995] O.J. No. 4774 (Ont. Ct. (Gen. Div.)) at paras 42-46).
[47] CFS Bylaw 1, para. 6.h. defines quorum for a vote on decertification to be: “that of the member local student association or ten percent (10%) of the students collectively belonging to the local student association, whichever is higher.”
[48] The UTGSU argues that the definition of quorum should change to include an implied term that if mail-out ballots are not permitted, those students who are unable to vote by paper ballot should not be counted towards quorum.
[49] Paragraph 6.g.I. is clear: voting must be by paper ballot, “at voting stations or, subject to the agreement of the Chief Returning Officer, by mail-out ballot” (emphasis added).
[50] It would take little to persuade this Court that para. 6.g.I. is out of step with the times. In this era of electronic communication and distance learning, voting by paper ballot at a voting station seems antiquated and impractical. That is particularly true in the case of a large university like the University of Toronto, which has a number of geographically spread-out campuses. It would be easy to envision any number of situations, different from those here, in it could be argued that the voting requirements prescribed by the Bylaws lead to hardship or unfairness to some students for whom voting would be difficult or even impossible.
[51] However, in my view, it is not for this Court to impose its views as to whether and what latitude should be granted to students who wish to vote via email or mail-in ballot or to direct a method of voting that is not contemplated by the applicable Bylaws. Those revisions, if any, are properly the subject of negotiation, consultation and input from all stakeholders.
[52] Applying the principles of contract interpretation to the facts of this case, I see no reasoned basis upon which this Court could imply or infer a term in the Bylaws that quorum would be calculated differently if some of the eligible voters could not vote for any reason, including that they would be unable to do so unless the CRO agreed to a mail-out ballot.
[53] The Bylaws did prescribe when a vote could be held: a decertification vote may not be held between April 15 and September 15 or between December 15 and January, times during which one might expect students to be away from school. These “blackout” periods suggest that that the drafters of the Bylaw (and those who agreed to be members and bound by the Bylaws), gave thought to how to limit or minimize the potential disenfranchisement of some eligible voters.
[54] Reading the Bylaws, as a whole, it is not reasonable to assume or imply that the parties to this “contract’ intended that any student who was unable to vote be excluded from the calculation of the members of the student body. Had that been intended, it could have been easily provided for in the Bylaws. Instead, the Bylaws left the determination of the only alternative to a paper ballot – a mail-out vote – to the discretion of the CRO.
[55] There is no principled basis upon which this Court could or ought to interfere with the agreed-upon terms of the contractual relationship between the parties. Membership in the CFS and CFS-O was voluntary. When the UTGSU joined it had the option of negotiating different Bylaws or refusing to join.
Issue #2: Were the Impugned Decisions of the CRO Unreasonable and did He Fail to Exercise his Discretion in Accordance with the Implied Duty of Good Faith?
[56] The Supreme Court of Canada has stated that “good faith contractual performance is a general organizing principle of the common law of contract.” ( Bhasin v. Hrynew, 2014 SCC 71, at para 33 ). And at paragraph 65: The organizing principle of good faith exemplifies the notion that, in carrying out his or her own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner. While “appropriate regard” for the other party’s interests will vary depending on the context of the contractual relationship, it does not require acting to serve those interests in all cases. It merely requires that a person not seek to undermine those interests in bad faith. This general principle has strong conceptual differences from the much higher obligations of a fiduciary. Unlike fiduciary duties, good faith performance does not engage duties of loyalty to the other contracting party or to a duty to put the interests of the other contracting party first.
[57] The UTGSU argues that the CRO breached his duty to fully and fairly consider mail-out ballots. The CRO determined that mail-out ballots would be unfeasible without the disclosure by the University Administrators of the identity of the UTGSU members and their mailing addresses. The UTGSU argues that the CRO did not, himself, ask the University Administration if they would disclose that information. It argues further that he delegated those inquiries to a DRO and that she also did not pose that direct question to the University Administration.
[58] While there may be some evidence to support the assertions of the UTGSU, the parties acknowledge and agree that the Administration of the University of Toronto had made their views very clear: they intended to guard the identity and the personal information of their students.
[59] The history of this litigation and, more importantly, the evidence of its principal affiants, Newman and Littley, support the conclusion that the Administration of the University of Toronto would not have provided the CRO with the names and mailing addresses of graduate students who are studying abroad or online. This was acknowledged by Newman on his cross examination on June 29, 2015, at Q. 331: Q. All right. It is a letter dated November 14, 2014. In the second paragraph it says: As you know the University is obligated under privacy regulations to protect personal student information. Similarly, the University respects the autonomy of student societies who receive funds under the policy for compulsory non-academic incidental fees. And I take it in looking at that paragraph and in reading this letter, the UTGSU was aware that the University wasn’t going to provide a list of students and their addresses and contact information. A. Correct.
[60] Without the names and addresses of the relevant students, mail-out ballots would not have been feasible. Although the UTGSU argues that the CRO did not fully explore that possibility, the evidence suggests otherwise. I conclude that he was acting within his discretion, and reasonably so, when he determined not to agree to a vote by mail-out ballot.
[61] As stated above, I conclude that the Bylaws as drafted and agreed to by the members of the CFS and CFS-O could lead to the disenfranchisement of some members. That undesirable result is one that the members may, in future, wish to address. In this instance, it would appear that approximately 190 UTGSU students were out of the country and, short of returning to Toronto, had no way of voting in the Referendum.
[62] The evidence regarding the ability to vote of the approximately 290 UTGSU students enrolled in online courses is less clear: the Court cannot clearly conclude that all, or any, of the online students were unable to attend a polling station to vote.
[63] It would seem predictable and foreseeable by all parties that the Bylaws as drafted might not have sufficient flexibility to enable or facilitate the desire of every eligible voter to vote in every election. However, that possible outcome is insufficient to allow this Court to re-write the Bylaws so as to require that those voters, whose exact number and identity are unknown and may even be unascertainable, be excluded from the calculation of the quorum required for the decertification vote. To imply such a term would lead to uncertainty and, in all likelihood unfairness to all those affected.
[64] In exercising his discretion, can it be said that the CRO failed to take into account relevant factors or considered matters irrelevant to the exercise of his discretion? For example, was he wrong to have assumed that the University of Toronto Administration would not provide him with the names and addresses of the UTGSU students so that he could mail out ballots to them? Was the CRO wrong to exclude UTIAS as a polling location? Was the CRO wrong to consider the cost of the elections when he had been given no limitations or parameters on costs and when the cost of adding hours or polling locations within been relatively small?
[65] Again, what this Court may not do is substitute its decisions for those made by the CRO. The notion of good faith to be applied in the context of dealings between members of an organization was recently considered by Justice Granger ( London Humane Society (Re), 2010 ONSC 5775, at para. 31 ). He considered the definition of ‘good faith” as defined in Black’s Law Dictionary, 9th ed. (St. Paul: Thomson Reuters, 2009) as: [a] state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.
[66] The evidence before this Court does not establish that the actions of the CRO offended any one of the four principles of good faith as set out above: a. his retainer letter to the CFS is evidence of his honesty in belief or purpose; b. the significant voter turnout-many times greater than had been achieved in two previous elections is evidence of the execution of his duty; c. his expressed concern about budget is consistent with reasonable commercial standards of fair dealing; d. his decision to extend the hours and number of days during which the votes could be cast, well beyond that prescribed by the Bylaws, is also consistent with his discharge of his duty and his observance of reasonable commercial standards of fair dealing; and e. there was no evidence at all of an intent on the part of the CRO to defraud or to seek unconscionable advantage.
[67] While another CRO might have made different decisions about the locations and duration of the voting stations, the evidence does not show that the decisions made by the CRO in the exercise of his discretion were arbitrary or made in bad faith.
[68] I accept and adopt the reasoning in Chu v. Scarborough Hospital Corp., 2007 CarswellOnt 5228, at para. 22, that the court ought not to “intervene with determinations made by a non-share capital corporation in accordance with its bylaws provided the corporation” has not demonstrated bad faith or acted contrary to the rules of natural justice.
[69] The principle was similarly enunciated by the court in Association of Part-Time Undergraduate Students of the University of Toronto and University of Toronto Mississauga Students’ Union and the Erindale Part-Time Undergraduate Students Association, 2008 CarswellOnt 5079, at para 22: As noted earlier, courts have held that they are loath to intervene in the internal affairs of organizations when faced with applications to review such matters as the electoral referendum processes of student societies and other associations. However, they have assumed jurisdiction when the organization’s processes and conduct lack the basic hallmarks of natural justice and fairness.
[70] The evidence before me is that: the CRO consulted with various stakeholders, both for and against decertification; polling stations were set up in many and various locations; the vote extended for five nine-hour days; and that the process and conduct followed by the CRO was inconsistent with the Bylaws to which all parties agreed to be bound. There was no evidence upon which this Court could conclude that the actions of the CRO or the conduct of the Referendum lacked the basic hallmarks of natural justice and fairness.
Legitimate Expectations of the Parties?
[71] The UTGSU refers to cases in which the Court interfered with the exercise of a discretionary power when the exercise of that power was contrary to the legitimate expectations of those affected by the decision. (See Sahaydakivski v. YMCA of Greater Toronto, 2006 CarswellOnt 2205; and C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] S.C.J. No. 28). UTGSU argues that the decisions by the CRO to refuse to provide a method of voting for students studying abroad or in the field or enrolled in online courses, “were unreasonable and incongruent with UTGSU’s legitimate expectation that the CRO would exercise his discretion under the Bylaws in a manner that took into account the interests of individual students and their enfranchisement.”
[72] I disagree. In my view the expectations of the parties must be viewed in the context of the “contract” to which they agreed to be bound when they joined the CFS. It is reasonable to assume that it is not an unusual or exceptional event for there to be some university students, including graduate students, who are studying abroad or by online courses. It would also be reasonable to conclude that, when agreeing to a Bylaw and voting mechanism that requires a paper ballot at a voting station and gives authority to the CRO to allow mail-out ballots, but does not provide at all for mail-in ballots or any electronic or proxy form of voting, that the parties expect that there will be some members who are unable to participate in that vote.
[73] Similarly, it is reasonable to conclude that, despite the inability for a certain number of “off-site” students to vote, their numbers would still be taken into account, as they are affected by the outcome. The Bylaws set a low threshold of quorum at 10 percent, which could lead to a result, indeed the result being sought in this case, that the will of 1052 voters would govern what happens to the remaining 15,004 members of the UTGSU (assuming a UTGSU membership of 16,056).
[74] When viewed in this perspective, it is difficult to conclude that the way in which the CRO exercised his discretion was inconsistent with the legitimate expectations of the members of the UTGSU.
[75] The CRO exceeded the prescribed minimum of 16 hours for the polling stations and established eight polling stations: six at the downtown campus, one at the Mississauga campus and one at the Scarborough campus. The stations were open for five days – from 10 a.m. to 7 p.m. on each of those days, for a total of 45 hours for each polling station.
[76] UTGSU argues that the CRO arbitrarily refused to add a polling station at UTIAS in the face of two requests. I disagree. While another person might have decided differently regarding location and voting times, it cannot be said that the CRO did not consider the requests for a polling station at UTIAS. He did so and gave his reasons, albeit reasons with which the UTGSU disagrees.
[77] I cannot conclude that the CRO exceeded his discretion in deciding not to have a polling station at UTIAS nor does the evidence support a finding that the CRO acted in bad faith.
Exercise of Discretion: Judged by a Subjective or Objective standard?
[78] The UTGSU submits that an objective standard must be used to judge the CRO’s exercise of his discretion. I disagree.
[79] The UTGSU relies upon the Ontario Court of Appeal decision in Greenberg v. Meffert, 1985 CarswellOnt 727. In Greenberg, the court distinguished between a discretionary decision on “matters involving taste, sensibility, personal compatibility or judgment of the party for whose benefit the authority was given, in which cases a subjective standard applies, and those decisions relating to “such matters as operative fitness, structural completion, mechanical utility or marketability,” which decisions attract a subjective standard of reasonableness (at para 19).
[80] I conclude that a subjective standard should be applied to the CRO’s exercise of discretion. Decisions on questions such as location of polling stations, hours of voting and whether or not to allow mail-out ballots are not measurable in the way that a structure or equipment may be assessed as fit or complete or marketable. Rather, the discretion afforded to the CRO in the Bylaws contemplates the exercise of his judgment and experience. In this case, the CRO was experienced in these very matters.
[81] In its submissions the CFS argued that even if the CRO were to be judged by an objective standard, he has satisfied that standard, given that there were 1599 votes cast in the Referendum compared to the 179 and 238 votes cast in elections held in 2014 and 2015.
[82] The UTGSU criticizes the CRO for his admission on cross-examination that, in his professional experience in dealing with contracts and working for the government, he considered budget in determining location of polling stations and hours of operation and that “… I have to feed my family. One of the considerations is I want to be asked to do this again so I need to keep costs low.” He completed this answer by stating that he was concerned about using the students’ money.
[83] It would be naïve to conclude that money or budget can or ought to be ignored in decision-making which leads to the expenditure of funds. The case law referred to above supports that economic factors are reasonable to consider in the exercise of discretion. The UTGSU argues that it would not have taken much money to have opened a polling booth at UTIAS. That may be so. In hindsight, perhaps less money would have been better spent to offer a polling station at UTIAS then has been spent on this litigation. However, absent a finding that the CRO failed to give any or reasonable consideration to relevant issues or acted in bad faith, it is not for this Court to substitute its own discretion or decisions, made in hindsight, for those of the CRO.
Conclusion
[84] Based on the evidence before me, and after considering the arguments put forth by the parties, I conclude that there is no basis upon which to set aside the vote conducted on the Referendum or to order that a new Referendum be held. Accordingly, I grant the Application brought by the CFS and declare that the UTGSU continues to be a member of the CFS and of the CFS-O.
Costs
[85] As did Justice Robert N. Beaudoin in Canadian Federation of Students/Fédération canadienne des etudiant(e)s v. Cape Breton University Students’ Union, 2015 ONSC 4093, at para. 143, I also adopt the comments of Justice Grauer in Canadian Federation of Students v. Simon Fraser Student Society, 2010 BCSC 1816, citing Justice Blair in a related proceeding at para. 59: Before leaving this matter, I feel obliged to adopt, with respect, the words of my brother Blair set out at paragraph 42 of his judgment: The cost of this litigation, no matter which party or parties are successful, will be borne by post-secondary students enrolled at SFU, as well as by students at those institutions which are members of the CFS. Tuition, books, accommodation and meals already impose a significant burden on post-secondary students without requiring them to contribute further to the costs of resolving the parties' dispute. I would anticipate that the student fees paid to the SFSS and the CFS can be used more productively for programs directly benefiting those students rather than being consumed in more litigation.
[86] With the above in mind, should the parties not be able to agree on costs, they may make written submissions not to exceed three pages, plus Bills of Costs, with proof of time spent and disbursements, within 30 days of the date of this decision. If the submissions are not received within that time and no extension is sought or granted, then no costs will be awarded.
Justice Liza Sheard Released: July 8, 2016