2018 BCCA 16 Kwantlen University College Student Association v. Canadian Federation of Students

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Kwantlen University College Student Association v. Canadian Federation of Students – British Columbia,
	2018 BCCA 16

Date: 20180117

Docket: CA44334

Between:

Kwantlen University College Student Association,
Steven Button and Alex McGowan

Respondents

(Plaintiffs)

And

Canadian Federation of Students – British Columbia

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Groberman

On appeal from: An order of the Supreme Court of British Columbia, dated February 24, 2017 (Kwantlen University College Students Association v. Canadian Federation of Students – British Columbia, 2017 BCSC 299, Vancouver Docket No. S146936).

Counsel for the Appellant:	M.G. Underhill K.R. Phipps
Counsel for the Respondent:	D.B. Borins J.P. Sullivan
Place and Date of Hearing:	Vancouver, British Columbia September 18, 2017
Place and Date of Judgment:	Vancouver, British Columbia January 17, 2018

Written Reasons by:

The Honourable Mr. Justice Groberman

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Saunders

Summary:

The respondents served a petition on the appellant seeking a referendum on whether their students’ union would withdraw from the appellant organization. Neither the appellant nor the respondents had access to a list of their members, so the respondents asked the registrar of the institution to verify the signatures on the petition. The registrar confirmed that the petition was properly signed by the requisite number of students. The appellant requested further information, and then conducted its own verification of the petition, finding that the number of valid signatures did not meet the required threshold. It refused to hold the referendum. The respondents sued, seeking various forms of relief, and the appellant sought judgment on a summary trial. The judge determined that the only issue suitable for summary determination was who had authority to verify the petition. He declared that the appellant was bound to accept the registrar’s determination as to the validity of the petition. On appeal held: appeal allowed in part. The declaration granted by the chambers judge is set aside. While each side argued that it had exclusive authority to definitively determine the validity of the petition, there was no basis for finding that either side had such authority. The signature requirement was an objective one, and the question of whether it was met could be determined by the courts if the parties were unable to agree.

Reasons for Judgment of the Honourable Mr. Justice Groberman:

[1] In September 2013, students at Kwantlen Polytechnic University (“Kwantlen”) circulated a petition asking for the holding of a referendum to decide whether the Kwantlen University College Student Association (the “KSA”) would continue to be a member of the Canadian Federation of Students – British Columbia (the “CFS‑BC”). At that time, the bylaws of the CFS‑BC required the holding of a referendum where 10% of its members at a member institution signed a petition requesting one. The current appeal is concerned only with the question of who was entitled to determine whether the 10% threshold was met.

The CFS‑BC Structure and Bylaws

[2] The CFS‑BC is an association of university and college students’ unions. Students’ unions that are associated with the CFS‑BC are described in its bylaws as “local unions”. The individual students who are members of local unions are also members of the CFS-BC and described as “individual members” in its bylaws. The directors of the CFS-BC are referred to as its “Executive Committee” and manage the general affairs of the association.

[3] The bylaws of the CFS‑BC allow an associated students’ union to withdraw from the organization by way of a referendum. The appellant refers to a withdrawal referendum as a “disaffiliation” referendum, while the bylaws use the words “defederation” and “decertification”. It appears that all of these expressions are interchangeable. In 2013 and 2014, the relevant bylaw provisions included the following provision:

2.1 Full Membership

…

l. The individual members of the Federation collectively belonging to a member local union will have sole authority to initiate, by petition signed by not less than ten per cent (10%) of the individual members and served to the Federation’s Executive Committee, a defederation referendum as described in this Bylaw.

[4] Subsequent provisions of the bylaw outlined procedures and rules for a referendum. These other provisions are of limited importance to this appeal, but are annexed to this judgment as an appendix.

The Petition and Verification Processes

[5] Individual students at Kwantlen collected signatures on a petition calling for a decertification referendum in September 2013. On September 25, 2013, the petition was submitted to the Executive Committee of the CFS-BC. On October 18, 2013, the CFS‑BC wrote to the KSA “requesting the assistance of the [KSA] in verifying the authenticity of the names appearing on the petition, including the enrolment status (or membership status, if different).”

[6] The KSA responded, advising that “the KSA does not have a copy of its membership list as [Kwantlen] will not provide us with personal information of students.” The letter advised, however, that a copy of the petition had been sent to the Office of the Registrar of Kwantlen, and that the Registrar had agreed to verify the petition.

[7] By letter dated December 10, 2013, the Registrar reported that there were 1,505 signatures on the petition, of which 1,387 were valid. Of the 118 invalid signatures: 37 were found not eligible to vote or not on the student list; 49 were cases where the student name did not match the student ID number; 13 were duplicate signatures; and 19 contained incomplete or illegible ID numbers.

[8] The letter stated that the number of eligible student voters was 13,501, and that the number of valid signatures represented 10.27% of the total number of students eligible to vote.

[9] The KSA forwarded the letter to the CFC-BC on December 18, 2013. The CFS‑BC executive was not satisfied with the Registrar’s letter, and responded to the KSA in a January 11, 2014 letter:

As you are aware, the Executive Committee of the [CFS‑BC] is responsible for determining whether a petition submitted by individual members seeking a referendum on the question of continued membership in the [CFS‑BC] is in order.

In order to consider the information that the Office of the Registrar has provided, the Executive Committee requires a copy of the petition that the Office used in its efforts to verity enrolment along with the Office of the Registrar’s notes next to each name indicating its status (ie. valid, invalid etc.) and a description of the criteria applied for the verification. For those signatures deemed invalid, the Executive Committee will require an explanation as to why the individual is not eligible (ie. incorrect student number, not enrolled, etc.). Upon receipt of this basic supporting documentation, the Executive Committee should be in a position to consider the petition and determine whether it is in order.

Please advise me … if the [KSA] is able to assist in this matter or if the Executive Committee should contact the Office of the Registrar directly to make these arrangements.

[10] The KSA responded on January 16, 2014:

You indicate in your letter that the “Executive Committee of the [CFS‑BC] is responsible for determining whether a petition submitted by individual members seeking a referendum on the question of continued membership in the [CFS‑BC] is in order”. The CFS‑BC bylaws contain no such provision

[11] The response went on to state that the KSA was not in possession of the information requested and expressed concern that the CFS‑BC was improperly delaying the referendum process.

[12] Over the following weeks, the parties exchanged letters, largely reiterating their views and concerns. The CFS‑BC also wrote directly to the Office of the Registrar of Kwantlen, requesting an “up-to-date membership list” so that it could, itself, verify the petition. The CFS‑BC followed up with several letters and voice messages to the Registrar.

[13] On March 4, 2014, the Registrar provided a membership list to the CFS‑BC, consisting of 16,262 individual student numbers, but without names. He invited the CFS‑BC to return to him if it had any questions, but it did not do so. On reviewing the list and the petition, the CFS‑BC concluded that there were 1,507 signatures on the petition, but that only 1,342 of them were valid.

[14] On March 28, 2014, counsel for the CFS‑BC advised that the referendum would not take place. Among the reasons given was that the petition was signed by only 8.25% of the membership at Kwantlen.

[15] In an affidavit sworn in November 2016, the Registrar explains the efforts made by his office to verify the petition in 2013, and to produce a list of voters for the CFS‑BC in 2014. He indicated that in 2013 his office examined each name and student ID number on the petition. In order for a signature to be considered valid, both the printed name on the petition and the student ID number had to be clear, and both had to correspond with an individual on the voters list.

[16] With respect to the 2014 voters list, the Registrar states that the list used in the original 2013 verification was not archived or retained. An effort was made to recreate a voters list as of September 24, 2013, in response to the CFS‑BC’s request, but the Registrar’s office experienced some difficulty in that endeavour. He states that the actual number of students registered at Kwantlen in the fall of 2013 was 14,385, though not all would have been members of the KSA. He concludes that the list his office provided to the CFS‑BC with 16,262 entries was “obviously not accurate” as it contained approximately 2,000 more student numbers than there were students enrolled at Kwantlen in the fall of 2013.

Proceedings in the Supreme Court

[17] In September 2014, the respondents commenced this action, alleging that the CFS‑BC’s actions in refusing to hold the referendum were in breach of contractual and fiduciary obligations, and were oppressive. Among the remedies sought was a declaration that the KSA was entitled to, and did, treat the CFS‑BC’s failure to hold a referendum in April 2014 as a fundamental breach of contract.

[18] The CFS‑BC eventually proposed to have the matter disposed of by way of a summary trial under R. 9-7 of the Supreme Court Civil Rules; the KSA contended that the matter was not suitable for summary trial, and brought an application to dismiss the summary trial application under R. 9-7(11).

[19] The matters proceeded on February 6 and 7, 2017, but there was insufficient time for full argument. The CFS-BC presented its full arguments on the merits, but the KSA only presented its argument on suitability of the matter for summary trial.

[20] Despite the incomplete hearing, the judge considered it clear that the claim was not, generally, suitable for a summary trial. He did consider, however, that one discrete issue raised by the CFS‑BC was suitable for summary determination: “whether [the] Executive Committee [of the CFS-BC] had implied authority under its bylaws to take such steps as it consider[ed] appropriate to verify that the petition submitted to it had indeed been signed by at least 10% of the members of the local union.”

[21] With respect to factual issues, the judge accepted the Registrar’s conclusion that the list provided to the CFS‑BC was inaccurate, and contained almost 2,000 more student numbers than there were students at Kwantlen. He also accepted the Registrar’s explanation as to why the earlier list contained only 13,501 names, even though Kwantlen reported total student enrollment at the time of 14,385.

[22] The CFS-BC, however, argued that its own verification of the petition determined that it contained only 1,342 valid signatures so that even if the number of eligible voters was only 13,501, the number of signatures still fell short of the 10% threshold. The CFS-BC contended that its Executive Committee had ultimate authority to determine whether or not a signature was valid.

[23] The judge rejected that contention. He noted that there was no express provision in the bylaws giving the Executive Committee such authority. Further, he found that past practice did not support the existence of such authority:

[56] On the evidence before me, there has been no past practice of the executive committee taking steps on its own to verify the signatures on a petition, whereas it accepted several previous petitions (at Kwantlen University College, Simon Fraser University, and the University of Victoria) with verification by the University’s registrar such as Dr. Hensley provided in this case. This makes sense, given that the Office of the Registrar can reliably be assumed to have no interest in the politics of student associations, and alone has access to all of the relevant information.

[24] The judge, referring to clause 2.1(l) of the CFS-BC bylaws, considered that the CFS-BC had no authority to verify a petition:

[60] [T]he requests [for documentation from the Office of the Registrar] are not consistent with the bylaw conferring on [individual members] “sole authority to initiate, by petition… a defederation referendum”. Note that the sole authority that the bylaw confers is to initiate a defederation referendum. The only means for doing so is through the initiating petition. That petition must therefore come within and be subject to the sole authority conferred upon the individual members.

[61] Viewed in context, I can see nothing about this grant of authority that requires me to imply the grant of a competing or additional “sole authority” to the executive committee to verify the petition. To imply such a division of “sole authority” would be inconsistent with Bylaw 2.1(l). It cannot be said that business efficacy requires such an implication, given that the parties got along without it quite handily before this petition was presented. Indeed, the chair of the executive committee, when examined for discovery, was unable to refer to any previous instance of this type of verification process being employed, and none was advanced in the affidavits. The past practice where results were typically verified by the registrars of the universities involved at the behest of the individual members (in accordance with their “sole authority”) appeared to be sufficient until this occasion.

…

[63] CFS-BC maintains that such a power must necessarily be implied because otherwise it would be left unable to determine whether a petition actually met the required threshold. But that is how the bylaws developed. Presumably it was to avoid this difficulty that members submitting these petitions developed the practice of having them verified by the relevant Office of the Registrar, a neutral party with all of the necessary information at hand. What authority it might have been necessary to imply in the absence of such verification need not be decided. Given that verification, it is impossible to say that the parties must have intended that the executive committee have a further and superseding authority to investigate and verify the results.

[64] I conclude that the executive committee had no implied authority to investigate and verify the petition forwarded by Mr. McGowan and confirmed by the [Kwantlen] Registrar’s Office. That came within the sole authority of the individual member (Mr. McGowan) and ought to have been accepted as satisfying the threshold for the holding of a referendum–subject, of course, to other prerequisites such as the payment of fees.

[25] The formal order with respect to the verification issue contains the following declaration:

… [T]his court declares that the Defendant’s Executive Committee had no … implied authority [to investigate and verify the results of the petition] and that the Defendant ought to have accepted the petition as having met the 10% threshold set out in Bylaw 2.1(l) of the Defendant’s Bylaws, as they read in September 2013.

[26] The CFS-BC attempted to appeal from both the judge’s determination that the claim was not generally suitable for summary determination and from his declaration that the Executive Committee of the CFS-BC lacked the authority to investigate and verify the petition. It filed both a notice of appeal and an application for leave to appeal and sought directions before a judge in chambers. The judge held that the appeal with respect to suitability required leave, and she denied leave. She held that the appeal with respect to the declaration concerning verification of signatures on a petition did not require leave. Accordingly, that is the only issue before this Court on this appeal.

Analysis

[27] On appeal, the appellant raises three issues. First, it contends that the judge failed to afford it a right to reply on the issue of verification of the petition, and in so doing, failed to respect the requirements of procedural fairness. Second, it says that the judge made a palpable and overriding error of fact in finding that the CFS-BC had accepted petitions verified by registrars in the past. Finally, it says that the judge erred in law in finding that the Executive Committee of the CFS-BC did not have authority to verify the signatures on the petition.

[28] It is unnecessary to address the procedural fairness issue. The issues that would have been raised in reply in the court below are not issues on which the chambers judge would be entitled to deference, and the appellant has had a full opportunity to address the issues on this appeal. As the appellant concedes, if there was any unfairness to the appellant in not having had the ability to present argument in reply, that unfairness can be corrected on appeal.

[29] It is also unnecessary, in my view, to analyze the issue of CFS-BC’s past practices in any detail. While the judge remarked on the absence of any evidence of the CFS-BC’s Executive Committee reviewing petitions after a registrar’s review in the past, it does not appear to me that the judge based his decision on that practice. Rather, he found that according to the language of the bylaws, the sole authority to determine the adequacy of a petition rested with the individual members who presented the petition. He found that the practice of petition proponents of referring the petitions to the registrar of the institution was reasonable, and eliminated any need to find an implied right of verification by the CFS-BC.

[30] In any event, I am not convinced that the history described by the chambers judge – three referendums in which either the CFS-BC or the Canadian Federation of Students (a separate but related organization) chose to accept the views of an institution’s registrar – could be taken to have established an enforceable rule of the CFS-BC. In Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165 at 191-192, Gonthier J., writing for the majority, found that a longstanding and well-established custom or tradition can become an implied term of a voluntary association’s rules:

A long-standing tradition provides a kind of notice to the member of what rules the association will follow. We also must remember that voluntary associations are meant largely to govern themselves, and to do so flexibly. Therefore, tradition or custom which is sufficiently well established may be considered to have the status of rules of the association, on the basis that they are unexpressed terms of the Articles of Association. In many cases, expert evidence will be of assistance to the court in understanding the relevant tradition and custom.

The tradition that a group of ministers appointed by the Senior Elder can finally decide issues referred to them by the Senior Elder is a valid rule on this standard. No one disputes that this tradition exists. The Constitution does not expressly forbid such delegation. It merely gives the conference board a certain power without specifying how it is to be exercised. The undisputed tradition is sufficient to authorize the further delegation of this power.

[31] In contrast, the history referred to in this case does not show a practice that is either clear or well-established. At best, the evidence shows that the Executive Committee of the CFS‑BC has, on three occasions in the past, accepted a registrar’s verification of a petition as sufficient evidence that the petition was valid. Nothing in the history suggests that the Executive Committee has, in so doing, surrendered any power that it may have had to review a registrar’s conclusions if it considered it appropriate to do so.

[32] I turn, then, to the issue at the heart of this case. What powers does the CFS‑BC have when it comes to verifying the signatures on a petition? The parties’ primary positions on this issue are diametrically opposed. The CFS‑BC asserts that it has final authority to determine the adequacy of a petition. On the other hand, the KSA argues that the judge was correct in finding that the individual members initiating the petition have authority (perhaps with the assistance of the Registrar) to determine when a petition must be accepted. There is, of course, a third possibility: that neither the proponents of a petition nor the CFS‑BC has authority to definitively pronounce on the validity of signatures.

[33] The CFS‑BC argues that there are two alternative bases on which it has the ability to determine the validity of signatures on the petition. First, it cites s. 24(2)(a) of the Society Act, R.S.B.C. 1996, c. 433, which was the applicable legislation at material times (it has since been replaced by s. 52 of the Societies Act, S.B.C. 2015, c. 18):

24. (2) Subject to this Act and the constitution and bylaws of the society, the directors

(a) must manage, or supervise the management of, the affairs of the society ….

[34] The appellant says that it is essential to the management of the CFS‑BC that its directors have the ability to verify signatures on a petition:

It is not controversial that if a society acts in a manner that is contrary to its articles, the act is ultra vires and void. Bylaw 2.1(l) provides that a defederation referendum is initiated by a petition signed by not less than 10% of the individual members of a member local union. If a defederation referendum proceeds when a petition has not been signed by 10% of the federation, the [CFS‑BC] will have acted ultra vires its own bylaws. Pursuant to s. 85 of the Society Act [now replaced by s. 105 of the Societies Act], an interested person, including in this case another member local student union, may apply to court to complain about the default in compliance, and the court has the authority to intervene.

[35] I agree that this reasoning demonstrates why the directors of the CFS‑BC must have the ability to examine a petition, and to form a view as to whether or not it meets the requirements of the bylaws. The same reasoning, however, shows why a determination by the directors cannot be definitive. Just as the CFS‑BC would be acting beyond its authority if it held a referendum where a petition did not meet the requirements of the bylaws, it also acts beyond its authority where it refuses to hold a referendum where a petition meets the bylaw requirements.

[36] The bylaws expressly set out objective requirements of a petition. The directors, in their management of the affairs of the society, have no authority to depart from those objective requirements. Nothing in the bylaws suggests that the directors have any privileged position to determine whether the objective requirements have been met.

[37] For the same reason, I would reject the CFS‑BC’s contention that the directors have an “implicit power” to definitively determine the validity of a petition. In Moulton Contracting Ltd. v. British Columbia, 2015 BCCA 89, this Court summarized the circumstances in which it is appropriate to imply a term in a contract:

[53] In M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619 at para. 27 … Justice Iacobucci for the Supreme Court summarized the three circumstances (identified in Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711 at 774-776) where terms may be implied in a contract:

(1) based on custom or usage; (2) as the legal incidents of a particular class or kind of contract; or (3) based on the presumed intention of the parties where the implied term must be necessary “to give business efficacy to a contract or as otherwise meeting the ‘officious bystander’ test as a term which the parties would say, if questioned, that they had obviously assumed” [citation omitted in Moulton].

[54] Justice Iacobucci noted that while it was not clear from Canadian Pacific Hotels Ltd. whether the “business efficacy” and “officious bystander” tests were two separate tests, what was “important in both formulations is a focus on the intentions of the actual parties”, and not “the intentions of reasonable parties” (at para. 29 [emphasis in original]):

This is why the implication of the term must have a certain degree of obviousness to it, and why, if there is evidence of a contrary intention, on the part of either party, an implied term may not be found on this basis.

[55] The key element is that the implied term is more than just reasonable; it is necessary to make the contract as the parties intended. That is, without the term, the contract, as intended by the parties, would not be effective.

[38] In the case before us, the bylaws can be effective without interpreting them as giving the CFS‑BC authority to definitively determine whether a petition is valid. Further, the CFS‑BC has an apparent interest in maintaining its membership; it is impossible to infer any intention on the part of the parties that the power to definitively determine the validity of a petition would be placed in the hands of a body with pecuniary and political interests in the issue.

[39] I am not, on the other hand, convinced that there was any basis for the judge’s finding that the bylaws give the proponents of a petition the right to determine whether it conforms with the bylaws. I repeat, for convenience, the provisions of Bylaw 2.1(l):

The individual members of the Federation collectively belonging to a member local union will have sole authority to initiate, by petition signed by not less than ten per cent (10%) of the individual members and served to the Federation’s Executive Committee, a defederation referendum as described in this Bylaw.

[40] The purpose and effect of this provision are clear. It prevents a “local union” from initiating a referendum by resolution or otherwise, and gives individual members the exclusive right to initiate a petition. Nothing in the provision expressly or implicitly gives the proponents of a petition the right to determine whether it meets the objective criteria of the bylaws for the holding of a referendum. The judge erred in interpreting the provision as giving the proponents the right to determine the validity of their own petition.

[41] In my view, the question of whether a petition has been signed by 10% or more of the CFS‑BC members in a local union is an objective one that is to be determined on the available evidence. It is not for one party or another to make a definitive ruling on the question.

[42] I agree with the chambers judge’s observation that, because the parties do not have access to lists of their members, they must, of necessity, rely on a third party – the registrar of the institution – to assist in determining whether a petition meets the threshold described in the bylaws.

[43] The Office of the Registrar was clearly an impartial body, with no apparent interest in the question of whether the petition met the threshold for a referendum or not. The parties, quite reasonably, referred the petition to the registrar, who graciously devoted resources to determining whether it met the requirements of the bylaws.

[44] I do not read the chambers judgment as suggesting that the registrar has the power, under the bylaws, to definitively determine that question. In my view, the registrar is not given such a power. The registrar is not mentioned in the bylaws, and there is no reason to expect that the parties would surrender their abilities to review the registrar’s work to satisfy themselves that no errors had been made. It was, therefore, open to the CFS‑BC to take issue with the registrar’s determination if it could demonstrate that there were errors in it. Equally, it was open to the CFS‑BC to undertake its own investigations into the validity of the petition.

[45] From a practical standpoint, it would have been sensible for the parties to discuss and, hopefully, resolve discrepancies among themselves, perhaps with the assistance of the Registrar. Even a brief dialog would have demonstrated that the numbers used by the CFS‑BC were obviously flawed, and that the Registrar’s original assessment of the total number of eligible voters was probably accurate.

[46] The parties could then have focussed on the question of how many signatures on the petition were invalid. This would have been a relatively straightforward exercise. The CFS‑BC identified 165 signatures that it alleged were invalid. It should have provided the respondents with a list of the signatures that were disputed, along with its reasons for disputing those signatures. The respondents could then have indicated which, if any, of those signatures they considered valid. It is likely that the parties would have been able to agree on the validity or lack of validity of the majority of those signatures, leaving a relatively small number in dispute. The parties could have gone to court and expeditiously had a judge determine which of those signatures were valid. If 9 or more of the disputed signatures were valid, the petition would have met the 10% threshold.

[47] The parties did not avail themselves of such discussions, with each taking the position that its own assessment of the facts should prevail. In my view, the bylaws do not support the primary positions of either party. Neither the CFS‑BC, the petition proponents, nor the registrar had the power to unilaterally come to a definitive conclusion as to the validity of the petition. If the parties could not reach agreement on that matter, it was one that could be resolved by the courts on the available evidence.

[48] This Court has, on many occasions, cautioned against the use of the summary trial rule to decide individual issues in isolation from other issues in litigation: See, for example, Bacchus Agents (1981) Ltd. v. Philippe Dandurand Wines Ltd., 2002 BCCA 138 at paras. 6-7; B.M.P. Global v. Bank of Nova Scotia, 2003 BCCA 534; Kaler v. Kaler, 2013 BCCA 57 at paras. 23-25; Edward Jones v. Mirminachi, 2011 BCCA 493 at paras. 31-32. The current case may well be an example of a situation in which the trial court’s efforts to resolve a single, non-determinative issue has resulted in unfortunate delays to the litigation. As no party has addressed the question of the propriety of the judge determining the single issue in isolation from all others, however, I will not say more about it.

Conclusion

[49] The declaration granted by the chambers judge was in error, and should be set aside. The question of whether the number of valid signatures on the petition met the 10% threshold set out in the bylaws is one that can be determined by the trial court in the litigation, on the basis of all of the evidence that the parties adduce.

[50] The primary positions of both the appellant and the respondents on this appeal have been rejected. I am of the view that neither has enjoyed substantial success on the appeal. Each party should bear its own costs.

“The Honourable Mr. Justice Groberman”

I AGREE:

“The Honourable Mr. Justice Donald”

I AGREE:

“The Honourable Madam Justice Saunders”

Appendix – CFS-BC Bylaw Provisions

2.4 Vote on Decertification

The individual members of the Federation belonging to a member local union may vote on whether to decertify, subject to the following rules and procedures:

a. Notice

i. Notice of a vote on [decertification], signed by a notary public, must be delivered by registered mail to the head office of the Federation not less than six (6) months prior to the vote.

ii. Notice of the vote must include the exact dates and times of voting.

iii. No vote on decertifying shall be scheduled between:

- January 1 and February 15; and

- July 15 and August 31.

iv. Failure to adhere to the notice provisions in Articles a.i. a.ii. and a.iii. shall invalidate the results of the vote.

…

c. Voting

i. Voting will be conducted at voting stations or, subject to the agreement of the Federation, at a general meeting of the member local union.

ii. There shall be no less than sixteen (16) hours of polling over no less than two (2) days, except in the case of voting being conducted at a general meeting.

iii. In the event that polling is conducted at a general meeting, representatives of the Federation and Federation member local unions shall be extended full speaking rights in the meeting.

d. Quorum

Quorum for the vote shall be that of the member local union’s or five per cent (5%) of the individual members of the local union, whichever is higher.

e. Chief Returning Officer

For each referendum on decertification, the Executive Committee 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 be responsible for:

i. establishing the notice requirement for the referendum and ensuring that notice is posted;

ii. establishing the campaign period in accordance with Section 2.4.b of this Bylaw;

iii. approving all campaign materials in accordance with Section 2.4 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 2.4.C 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 of the vote.

f. Campaign Materials

Campaign materials shall not be misleading, defamatory or false. The Chief Returning Officer shall be the sole arbiter of whether materials are misleading, defamatory or false.

g. Appeals

For each referendum on decertification, an Appeals Committee shall be appointed to adjudicate any appeals of the referendum results or rulings by the Chief Returning Officer. The Appeals Committee shall be composed of:

i. one Executive Committee member or a designate appointed by the Federation’s Executive Committee; and

ii. two individual members elected at a Federation general meeting who are not members of the Federation’s Executive Committee.

Members of the Appeals Committee shall not campaign during a vote to decertify.

h. Required Majority

In order for a decertification referendum to proceed, a majority of the individual members voting in the referendum vote in favour of decertifying.