Court File and Parties
COURT FILE NO.: CV-22-90339 DATE: 2022/10/14 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CANADIAN FEDERATION OF STUDENTS and CANADIAN FEDERATION OF STUDENTS-SERVICES, Plaintiffs (Moving Parties) AND: CARLETON UNIVERSITY STUDENTS’ ASSOCIATION, INC., Defendant (Responding Party)
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Todd J. Burke and Graeme Macpherson, for the Plaintiffs David Foster, for the Defendant
HEARD: October 14, 2022
DECISION AND REASONS
RSJ MacLeod (Orally):
[1] The defendant (CUSA) is the student association for Carleton University. CUSA is a member of both plaintiff organizations (collectively the CFS) and is in a contractual relationship with them. The Executive Council of CUSA is dissatisfied with the value for money that Carleton students receive for their annual fees paid to CFS and proposes to conduct a referendum in which Carleton students will be encouraged to express their support for ending the relationship with CFS.
[2] The CFS bylaws are binding on all of its members and they include a process for disassociation. That process includes a petition signed by 15 percent of the students entitled to vote followed by a referendum conducted by CFS under the oversight of a neutral Chief Returning Officer. There are also provisions governing campaigns for the “no” and “yes” side in such a referendum. The bylaws specify that this is the only way in which such a referendum on disassociation may be conducted and they also limit how often the process may be used. Such a referendum took place at Carleton in 2018 and resulted in a vote to remain in the CFS.
[3] Although the 60-month time period for another referendum under the bylaws has not expired, CUSA has organized a referendum to be conducted on October 17, 2022, which is Monday. The executive has also voted to support the “no” side in the proposed referendum. The referendum question is as follows:
[4] CFS brings a motion to prohibit CUSA from proceeding with the referendum. CFS argues that this is a clear violation of the CFS bylaw and is a referendum conducted by CUSA on short notice and without the restrictions, oversight or framework contemplated by the CFS bylaws. CFS contends that this action by the CUSA executive is both unlawful and unfair and is not in the best interests of the students at Carleton who are entitled to exercise their votes on this important issue in a fully informed and appropriately organized vote.
[5] CFS contends that if the executive of CUSA is permitted to proceed with an illicit process in breach of the bylaws to which it has bound itself and on the basis of unfounded attacks on CFS, it will undermine the ability of CFS to function as the national voice of students, will undermine the ability of CFS to provide services to its members and will cause irreparable harm that cannot be quantified in damages. On this basis it seeks a mandatory order to stop the vote.
[6] CUSA has put forward an affidavit stating that the proposed referendum is not a binding referendum but a consultative referendum. The affidavit states that the referendum result will not alter the contractual relationship between CUSA and CFS but will permit CUSA to consult its membership and to determine whether or not it has a mandate to “start down the long and arduous path of decertification under the CFS bylaws.” Counsel for CUSA argues that the court should not interfere with the internal democratic processes of CUSA and its rights to consult its own members. CUSA argues that the proposed referendum is not a decertification process and cannot be so because CUSA acknowledges that it must follow the decertification process should it decide to pursue it next year when the 60 months has expired.
[7] Counsel for CFS argues that this is entirely disingenuous. Firstly, there is a definition of referendum under the bylaw which this “referendum” meets and so it is prohibited under the CFS bylaw insofar as it relates to disassociation with the national organization. Secondly, the referendum document itself does not make clear that it is non-binding and does not comply with either the CFS bylaw or CUSA’s own referendum bylaw in that regard. Finally, this referendum which does not provide for any participation by CFS is a process to subvert the approved referendum process under the CFS bylaw by skewing student opinion in advance of a properly constituted referendum and is in effect campaigning outside of the campaign period set out in the CFS bylaw.
[8] The question for the court on a motion such as this is not a final determination of the merits. The question is whether a court should intervene by granting the extraordinary relief of an interim injunction. The question must be decided this afternoon because the vote is scheduled to begin on Monday. Court intervention is justified only if there is a genuine issue to be adjudicated and a risk of irreparable harm if an order is not granted. (The RJR McDonald test)
[9] I have no difficulty with the first branch of this test. The referendum question and the manner in which it is framed appears to be a clear attempt to circumvent the process set out in the CFS bylaw. Even if the main purpose of the referendum is as a negotiating tool and even if CUSA acknowledges in its affidavit material that it is non-binding and cannot lawfully result in dissociation from CFS, it has the appearance of a vote rather than an opinion poll. The question as worded, complete with a preamble, is not the wording contemplated by the bylaw. The preamble presents only the costs and not the benefits of membership and is therefore designed to influence the vote.
[10] The more difficult question is a question of irreparable harm. CUSA argues that since the referendum is not (and it concedes cannot be) binding, it will not rupture the relationship and will not interfere with the contractual arrangement between CUSA and CFS. CFS argues however that permitting the CUSA executive to build momentum towards decertification by running a pseudo referendum in violation of the CFS bylaw and with no provision for CFS to campaign against it, is misleading to Carleton students and unfair to CFS. This is particularly so in the face of the relatively recent democratic exercise by students of Carleton to remain in the CFS.
[11] Counsel for CFS argues that permitting this referendum to continue will do damage to the institution of CFS and to the orderly processes for adhesion and withdrawal that cannot be calculated in mere monetary damages. Indeed, monetary damages may not be, in any sense, an appropriate remedy for breach of the bylaws which are binding on CUSA as well as all other student organizations that are members of CFS.
[12] I agree. This referendum does appear designed to avoid and subvert the regular process to which all members of CFS are bound. A mandatory order is appropriate.
[13] Consequently, CUSA is ordered not to proceed with the proposed referendum.
[14] Counsel have requested time to confer in relation to costs. That is appropriate.
Regional Senior Justice C. MacLeod
Date: October 14, 2022
COURT FILE NO.: CV-22-90339 DATE: 2022/10/14
ONTARIO SUPERIOR COURT OF JUSTICE
RE: CANADIAN FEDERATION OF STUDENTS and CANADIAN FEDERATION OF STUDENTS-SERVICES, Plaintiffs (Moving Parties) AND: CARLETON UNIVERSITY STUDENTS’ ASSOCIATION, INC., Defendant (Responding Party)
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Todd J. Burke and Graeme Macpherson, for the Plaintiffs David Foster, for the Defendant
Decision and reasons
Regional Senior Justice C. MacLeod
Released: October 14, 2022