Canadian Federation of Students v. Kwantlen University College Student Association (April 2008 referendum)

Summary

The Kwantlen Student Association (KSA) delivered a valid disaffiliation petition to the Canadian Federation of Students in September 2007. A Referendum Oversight Committee (ROC) was struck; however, the ROC failed to reach agreement on a number of issues, including the text of the referendum question. Given the fact that the deadlock was threatening to delay the referendum, the KSA decided to ask its independent Chief Returning Officer to conduct the referendum. The CFS then sued the KSA, claiming: (1) the ROC was responsible for determing the dates of the referendum; (2) as the ROC had been unable to agree on a number of issues, including the text of the referendum question, the referendum had to be delayed; and (3) as the KSA had engaged in allegedly inaccurate “pre-campaigning,” the referendum would have to be delayed until the fall semester, so as to cleanse the malleable minds of the KSA membership from such “inaccurate” information. The CFS asked for an interlocutory injunction blocking the referendum, and delaying it until the fall of 2008. In response, the KSA claimed: (1) the CFS Bylaws provided that the dates of the referendum would be set out in the petition, not determined by the ROC; (2) as, the CFS was seeking an “interlocutory injunction” (i.e. a ruling before the referendum, rather that after it), it would have to demonstrate “irreperable harm” to itself should the referendum proceed, which it was unable to do; (3) the CFS lacked standing; and (4) “pre-campaigning” did not violate the CFS Bylaws.

The Court agreed with the KSA that “pre-campaigning” did not violate the CFS Bylaws (and that a ban on “pre-campaigning” would be undemocratic). The Court also agreed that the CFS Bylaws provided that the dates of the referendum were supposed to be set out in the petition, not agreed to by the ROC. However, the Court also ruled that the CFS had standing in the case, that the CFS would suffer “irreperable harm” if the referendum were to proceed. The Court ruled that the KSA “went outside the bylaws” by deciding to use its Chief Returning Officer. In the end, the Court rescheduled the referendum to take place three weeks later than originally scheduled, and asked the KSA’s Chief Returning Officer to conduct the referendum. This allowed the CFS mobile army to fight the SFSS and the KSA consecutively, rather than simultaneously, as had been originally planned. The CFS won the rescheduled referendum with 56% of the vote.