Bylaw amendments cause uncertainty over membership
The Canadian Federation of Students and the Kwantlen Student Association have once again returned to court. On Feb. 12, the KSA filed a petition to the court stating that on Feb. 6, the KSA’s membership in the CFS and CFS-Services was validly terminated. The CFS refuted this claim in their response.
The Canadian Federation of Students is a national lobbying organization that represents students at various post-secondary institutions across the country. The Kwantlen Student Association is a member of the CFS.
In October 2014, the CFS amended their bylaw pertaining to the definition of membership to read, “There is one (1) category of member of the Federation; local student associations representing individual students who have been admitted as members by the Federation.” This amendment was made in order to comply with the new Canada Not-for-Profit Corporations Act. Prior to the amendment, student associations and individual students were considered members, albeit in different categories. However with the change, only student associations are now considered members.
Following this amendment, the KSA held a council meeting on Feb. 6, where they passed a resolution that they felt terminated their membership with the CFS. The CFS opposed this claim, so the KSA filed a petition to the court stating that they were able to end their membership as a result of the bylaw change, which the KSA argues effectively concludes the CFS’ relationship with KPU students. The KSA believes that this means the CFS no longer has the legal basis to require Kwantlen students to pay individual membership fees, or vote in a referendum that decides whether or not the KSA remains a member of the CFS.
“In light of the [CFS]’ elimination of their Individual Membership class, the KSA council resolution … was a valid exercise of the powers and duties of the KSA Council under the KSA’s bylaws and the Society Act,” the petition reads.
Steven Button, then-vice-president of student services at the KSA, and Alex McGowan, the current vice-president external are the named petitioners in the case, and both have submitted affidavits to the court. The KSA is represented by David Borins of Borins and Company, which is also the legal counsel for the Polytechnic Institute Publishing Society that publishes The Runner.
The CFS responded on March 13, and stated that “any resolution made by the KSA council was not effective to terminate the KSA’s membership in the [CFS].” They explain that the CFS decided to eliminate the student class of membership because it was impractical to hold a vote of 500,000 students whenever a vote was required. Under the Canada Not-For-Profit Corporations Act this would mean all 500,000 students would need to vote on things like amending the bylaws. They also state that other not-for-profit federal corporations made similar decisions to eliminate non-voting member classes.
The CFS is represented by Martin L. Palleson of Gowling Lafleur Henderson LLP.
According to the CFS’ response, the bylaw amendment “did not, as a practical matter, alter the rights, role and involvement of students in the petition respondents.” Because of this, they consider the amendments to be a “housekeeping matter.”
“There is no reason why the KSA cannot enter into an agreement to join an association,” read the response. “If the bylaws of the association require a vote of Kwantlen students to leave the association, that departure process is binding on the KSA as a matter of contract.”
The KSA’s concern with this is that the people deciding if they are remaining in an organization are not the ones to whom the membership belongs.
In mid-September, the KSA and CFS returned for their second day of court proceedings, with Palleson starting things off. Both plaintiff and defendant focused primarily on the implications of CFS members now being solely defined as the student associations rather than individual students, as well as the impact this would have on the KSA’s requirement to pay membership fees to the CFS.
“I think we have a straightforward position . . . if it’s a membership fee, the member has to pay it,” argued Palleson.
He further purported that a society can be bound by its board to enter into a contract, and even if that contract involves a third party (in this case, the students of the KSA), it is still binding. He went on to raise the point that until this case, the KSA has acted as though they were bound to CFS bylaws, including the withdrawal procedure for ending their membership (through a referendum).
He was followed by Borins, who argued that the bylaw amendment created a “fundamental change” in the way fees were collected, and that the KSA doesn’t believe it can force students to pay CFS membership fees, which is what this new contract demands. He also suggested that it was ultra vires to have KPU students vote on continued membership, since they’re by definition no longer members of the CFS–and in that case the student association doesn’t get a vote on whether or not they continue their membership, even though it’s theirs.
He noted that it was unfortunate if the CFS had neglected to make appropriate changes to their bylaws.
The case is now awaiting the judge’s ruling.