UPDATED: CBUSU suffers major blow in legal defeat against CFS

The Ontario Superior Court rendered a decision in a case pitting the Cape Breton University Students’ Union (CBUSU) and the Canadian Federation of Students (CFS). This long-standing legal battle stems from a dispute of the legitimacy of a March 2008 referendum on continued membership. Out of the 366 students who casted a ballot, 92% voted against continued membership in the Federation. In summary, the CBUSU remains a member of the Federation and is on the hook for 6 years worth of unpaid membership fees, worth $293,159.13. The CFS was asked to submit its costs submission within 30 days of the release of the decision. This will likely add another significant financial burden facing the CBUSU. 

In Mr. Justice Robert N. Beaudoin’s Analysis and Conclusion, he writes: “I am satisfied on all of the evidence before me that the referendum held by the CBUSU was invalid in that it did not comply with the then prevailing Bylaws and that the vote on defederation cannot be recognized on any other basis.”

This charge is based on the fact that, in September 2007, it was in fact the members of the CBUSU executive that initiated the petition that would trigger a referendum. During the trial, it was admitted that members of the executive collected the signature during the first week of classes, September 10-15, 2007. This is where the CBUSU diverged from the CFS Bylaws. According to Bylaw 1, Article 3(a)(iii) of the Federation’s most recently available Bylaws, only “the students collectively belonging to a local student association” (i.e.: the individual students who make up the CBUSU membership) can initiate a petition, not the “voting member” (i.e.: the CBUSU executive is considered a voting member of the CFS).

The consequences stemming from this decision could mean the end of the CBUSU. The student union was ordered to pay nearly $300,000 in damages to the CFS as well as the Federation’s legal fees which could amount to another $100,000. Speaking with CTV News Atlantic, Brandon Ellis, President of the CBUSU, admitted that all options are on the table including laying off some of the student union’s 80 employees or even bankruptcy.

Further reactions to the decision

Students Nova Scotia expressed its concern in a statement regarding the results of the trial.

Paul Wells, political editor at Maclean’s Magazine, weighed in on Twitter leading us to believe he has some knowledge of the Federation’s rocky history:

Liberal MP Rodger Cuzner also took to Twitter to say he is “proud” of StudentNS for its stance on the CBU issue:

Finally, to get further historical context, you can go back and listen to an interview from June 2014 which included Brandon Ellis, President of the CBUSU, and Brent Farrington, CFS Internal Co-ordinator. They both spoke with CBC’s Information Morning Cape Breton’s host Steve Sutherland.

UPDATED: Saturday August 8, 2015

On Friday, we initially posted an article on our Facebook page which indicated that the CBUSU had filed for bankruptcy. However, this was an erroneous report. Later in the afternoon, another article was published in The Chronicle Herald stating that the CBUSU would in fact appeal Justice Robert N. Beaudoin’s decision. Brandon Ellis told the Herald that Toronto-based law firm Borden Ladner Gervais is representing the student union. This is the same firm that represented the University of Toronto Graduate Students’ Union last year in its legal case against the Federation.

PGSS votes to leave the Canadian Federation of Students (again)

On January 15 and 16, 2015, members of the Post-Graduate Students’ Society of McGill University (PGSS) had the opportunity to vote in a referendum on continued membership in the Canadian Federation of Students (CFS).

According to the PGSS website, preliminary results indicate that graduate students voted overwhelmingly in favour of cutting ties with the Federation:

Referendum question: Are you in favor of continued membership in the Canadian Federation of Students (CFS)?

Number of votes: 2129* (26.3% voter turnout)
Yes votes: 56* (2.7%)
No votes: 2014* (97.3%)

*All results are preliminary, subject to change pending University verification and receipt of mail-in ballots. The CRO will post the official results in due time. The referendum and formal request to leave the Federation will need to be ratified at the next General Assembly of the CFS.

Readers were reminded in an article published in the McGill Daily that the PGSS continues to be involved in litigation with the Federation stemming from a March 2010 referendum during which members of the PGSS voted to leave the CFS. The CFS would prefer to acknowledge this month’s vote as this would imply that the PGSS has continued to be a member of the Federation since March 2010. This, in turn, would mean that the PGSS owes 5 years worth of membership dues (between March 2010-June 2015). Before the CFS agreed to hold this month’s referendum, the PGSS was forced to pay over $300.000 in outstanding dues as per the CFS Bylaws. The PGSS will continue to pursue the litigation emanating from the 2010 referendum and will now seek to recover that money. Court hearings in that case won’t begin until 2017.

A McGill Tribune article quotes CFS chairperson Jessica McCormick who appears to show that the Federation would likely recognize the results at the Federation’s General meeting in May/June 2015. A statement (http://aboutcfs.ca has already been rendered inaccessible) by the Ms. McCormick was released just before this month’s referendum and deserves to be quoted:

Unlike other votes on membership, the Canadian Federation of Students will not be engaging in a traditional campaign on campus in order to highlight the importance of working together. The reality is that over the past five years, the graduate student members at McGill have been so misled and misinformed by portions of the elected leadership of the PGSS about the work of the Canadian Federation of Students and the formerly positive, supportive relationship with the other members of the organization that it would be virtually impossible to set the record straight in a short campaign period. As an example, there has been so much disinformation that the average McGill graduate student incorrectly thinks that the Canadian Federation of Students has been suing the McGill PGSS. In fact, the PGSS has engaged in a sustained campaign of legal attacks against the other member local unions that comprise the Federation in order to achieve a specific outcome-to isolate graduate students at McGill from students across the country.

While the Federation made it seem like no traditional campaigning would occur, many people were brought in by the CFS to act as poll clerks (May not be an exhaustive list): 

Carole Blank – Kaileigh Macrae  – Munib Sajjad – Carolyn Hibbs – Emma Campbell – Alena Peters – Jasmine Parent – Glenn Burley – Adam Awad – 
Sarah McCue – Alyssa Blank – Nadia Fentiman – Lauren Montgomery – Nick Stark – Brent Farrington – Laurel Walsh – Anna Dubynski

I do hope that as many graduate students will read the entire statement (also available in French) to see how condescending it really is. McCormick’s attempts to speak down to students seem to suggest that graduate students are unable to think critically about the information they have received from the “elected leadership of the PGSS” and judge the organization on its merits. While the PGSS has in fact brought the CFS to court, to characterize the litigation as a “sustained campaign of legal attacks” is exaggerated rhetoric that is often used by the Federation to describe anybody who dares to disagree with and/or criticize the organization. Let this CFS statement be seen for what it really is: a sophisticated, camouflaged admittance of defeat, a throwing in of the towel.

Campaigning in PGSS referendum on continued membership in the CFS begins today

Campaigning in the Post-Graduate Students’ Society’s (PGSS) referendum on continued membership in the Canadian Federation of Students (CFS) began today, January 5, 2015. Members of the PGSS will have the opportunity to vote from January 15 to 16, 2015. 

Consult the PGSS’s CFS referendum rules here

This referendum is the result of a lengthy court battle between the national Federation and Sa Ge, a McGill University philosophy engineering doctoral candidate and individual member of the PGSS. Legal proceedings continue to this very day stemming from the referendum rules put in place by CFS chief returning officer, Stephen Littley. Building upon the rules he drafted for the Capilano Students’ Union’s March 2014 referendum on continued membership in the federation which included an outright ban on referencing any media publications, Mr. Littley has taken his information control to further extremes: 

d. The Chief Returning Officer or his designate will not approve materials that are defamatory, misleading or false, that refer to legal or quasi legal action/s before the courts that relate the Referendum, or to other legal or quasi legal actions, that may undermine the Referendum (emphasis added).

While he essentially empowers himself to be the judge of whether the content of campaign material is defamatory, misleading or false (which is obviously prone to be abuse), Littley is now of the opinion that referencing any legal or quasi legal actions involving the Canadian Federation of Students “may undermine the Referendum”. The outright ban on anything referencing the CFS in the media continues to remain in place: 

e. The Chief Returning Officer or his designate will not approve materials that contain links to 3rd party media, opinion, dialogue, report, blog, or any other source that can not be governed and sanctioned by these by-laws (emphasis added).

The soundness of such rules have never been contested in court until now. Mr. Jonathan Mooney, a former member of the PGSS executive and chairperson of the No Committee, submitted a contestation to the CFS Appeals Committee(Bilan Arte, James Bowen and Amy Hammett). Mooney is contesting 3 rules established by the CRO:

1.   “The restrictions on references to legal or quasi legal action/s before the courts that relate to the Referendum, or to other legal or quasi legal actions, that may undermine the Referendum are null and void as ultra vires the jurisdiction of the CRO and as a violation of the fundamental rights of the members of PGSS”;

2. “The restrictions on campaigning in a business or service owned or operated by PGSS are null and void as ultra vires the jurisdiction of the CRO and as a violation of the fundamental rights of the members of PGSS”;

3. “The restrictions on campaigning in areas or events where alcohol is served are null and void as ultra vires the jurisdiction of the CRO and as a violation of the fundamental rights of the members of PGSS”

According to court documents obtained by Studentunion.ca, at the time of publication the Appeals Committee has yet to respond to Mr. Mooney’s December 27th 3-page contestation. The Quebec Superior Court of Justice will rule on Mooney’s motion, which contests a number of aspects of the referendum administration including allegations of negligence and bad faith, on Wednesday, January 7, 2015.

Voting in the PGSS referendum on continued membership will take place over 2 days, January 15 and 16, 2015.

1. As per CFS By-Law 1, section 6 i, the Appeals Committee is composed of: “i. one National executive member or a designate appointed by the Federation’s National Executive; and ii. two individual members elected at a Federation general meeting who are not members of the Federation’s National Executive”.

Canadian Federation of Students suing UTGSU: NO Campaign Committee

According to a group of students who ran the Vote NO campaign in the recent University of Toronto Graduate Students’ Union (UTGSU) referendum on continued membership in the Canadian Federation of Students (CFS) and the Canadian Federation of Students-Ontario (CFS-O), the Federations have filed a notice of application against the UTGSU. The group also claims that the documents were delivered to the UTGSU on Tuesday, 2 December 2014, only 2 days after the CFS chief returning officer (CRO) Stephen Littley announced that the quorum had not been reached. This leads them to believe that the application was well underway even before the results of the referendum were released.

When asked (by email) whether the UTGSU had in fact received the notice of application, the UTGSU’s Civics and Environment Commissioner Susanne Waldorf wrote “We have no comment on this. Sorry.” At the time of publication, neither the CFS nor the CFS-O had responded to email inquiry. 

NOTE: For clarity, “Canadian Federation of Students” refers to the Canadian Federation of Students, Canadian Federation of Students-Services (CFS-S) and the Canadian Federation of Students-Ontario in the title of this post.

Québec Superior Court to hear legal challenge to mandatory student association membership

According to an article in Le Soleil [FR], a lawsuit challenging the constitutionality of mandatory student association membership will be heard before the Québec Superior Court on December 9 – 12, 2014.

The lawsuit [PDF; FR] claims that certain sections of the Québec Act Respecting the Accreditation and Financing of Students’ Associations violate the Freedom of Association clause of the Canadian Charter of Rights and Freedoms. The lawsuit is filed against the Attorney General of Québec. Three Québec student federations (FEUQ, FECQ, and TaCEQ) have intervenor status.

Studentunion.ca first reported on this lawsuit in January 2013

The plaintiffs are Laurent Proulx and Miguaël Bergeron, students at Laval University. MM. Proulx and Bergeron were part of the “Green Square” movement, a small group of conservative students supporting the Charest government’s plans to increase university tuition fees and opposing the “Red Squares,” the symbol of the Québec student strike. The lawsuit highlights the role of student associations in organizing the strikes:

42. The monopoly of representation and the mandatory fees therefore suggest to student associations, and in certain cases even educational institutions, that they are entitled to exercise the right to strike and ultimately block access to classrooms….

44. We will spare this Honorable Court the 43 injunctions granted last spring [i.e., 2012]. That said, we would like to recall that among the damages suffered were:

  • the loss of a semester of study
  • delays in taking exams for professional associations
  • delays in entering the labour market
  • loss of paid internships
  • loss of scholarships

The lawsuit also references Article 20 of the Universal Declaration of Human Rights, which states: “No one may be compelled to belong to an association.” Furthermore, the lawsuit references laws adopted in Australia and New Zealand which ban post-secondary educational institutions from collecting mandatory student association fees.

Read Fondation 1625’s press release here

Update on legal cases involving the Canadian Federation of Students

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Following the
two court losses suffered by the Canadian Federation of Students (CFS) last month, it has applied to the Quebec Court of Appeal to suspend the execution of the judgement [French only], rendered by Justice Gérard Dugré on September 9, 2014, ordering a referendum on continued membership be held for members of the Post-Graduate Students’ Society of McGill University (PGSS). This is an attempt by the CFS to block the members of the PGSS from having the opportunity to vote on their continued membership in the Federation.

On Tuesday afternoon, October 21, 2014, Ms. Justice Geneviève Marcotte dismissed the CFS’s Motion to Stay the Provisional Execution [French only]. She reiterated that Mr. Sa Ge’s right to vote on the question of PGSS’s continued membership in CFS is quasi-constitutional and added that the criteria of the balance of convenience1 favours the McGill University graduate student. Justice Marcotte also added that the CFS’s appeal on the merits seems to have no serious chance of success. 

All this to say, Justice Dugré ordered that a referendum on continued membership in the CFS must be held at McGill regardless of if the CFS decides to move forward with its appeal or not. 

Today, the PGSS will appear before Justice Gérard Dugré requesting that he select the dates for the referendum and an order to have PGSS’ outstanding membership dues held in trust (dues that have been collected since members of the PGSS voted to cease membership in the CFS in April 2010; the CFS never recognized the results of that referendum and the outcome of that legal battle has yet to be settled). 

Stay tuned…

UPDATE: November 4, 2014
A link to Ms. Justice Geneviève Marcotte’s October 21, 2014 decision to reject the CFS’ Motion to Stay the Provisional Execution was added.

1. According to a paper published by Gowling, Lafleur Henderson LLP, the balance of convenience “involves determining which party will suffer greater damage from granting or refusing the injunction.”