This action might not be possible to undo. Are you sure you want to continue?
Citation: Kwantlen University College Student Association v. Canadian Federation of Students – British Columbia Component, 2011 BCCA 133 Date: 20110318 Docket: CA037884 Between: Kwantlen University College Student Association Respondent (Petitioner) And Canadian Federation of Students – British Columbia Component Appellant (Respondent) Before: The Honourable Madam Justice Rowles The Honourable Mr. Justice Groberman The Honourable Mr. Justice Hinkson
On appeal from: Supreme Court of British Columbia, January 20, 2010 (Kwantlen University College Student Association v. Canadian Federation of Students – British Columbia Component, Vancouver Registry No. S094085) Counsel for the Appellant: Counsel for the Respondent: Place and Date of Hearing: Place and Date of Judgment: Place and Date of Reasons: D.G. Crane D.B. Borins Vancouver, British Columbia February 3, 2011 Vancouver, British Columbia February 3, 2011 Vancouver, British Columbia March 18, 2011
Written Reasons of the Court
Reasons for Judgment of the Court:  Derek Robertson was selected by the Kwantlen University College Student
Association (“KSA”) as its representative on the Executive Committee of the Canadian Federation of Students – British Columbia Component (“CFS-BC”). The Executive Committee refused to allow Mr. Robertson to take his position, because he had recently taken part in a campaign to have the KSA withdraw from its membership in the CFS-BC. The KSA filed a petition under the Society Act, R.S.B.C. 1996, c. 433, and the chambers judge who heard the matter ordered that Mr. Robertson be recognized as a member of the Executive Committee. The CFSBC appealed from that order, and the appeal was dismissed by this Court with reasons to follow. These are our reasons for dismissing the appeal. The CFS-BC Structure and the position of KSA representative  The CFS-BC is the British Columbia affiliate of the national student
organization, the Canadian Federation of Students. It is incorporated as a society under the Society Act.  The CFS-BC bylaws provide for “local associations” to become
members. Local associations are democratically controlled campus-wide student organizations of students at post-secondary institutions. There are currently 16 post-secondary institutions in B.C. whose student associations are “local association” members of the CFS-BC.  In addition to local association members, the bylaws of the CFS-BC give
membership status to all students who belong to the member local associations. Thus, the bylaws of the CFC-BC speak of two types of membership: “local association” membership and “individual” membership.  The KSA is the student association at Kwantlen University College. It
represents approximately 18,000 students. The KSA is a local association member
of CFS-BC, and students at Kwantlen University College are individual members of CFS-BC.  The structure of the CFS-BC emphasizes the role of the local associations. At
its general meetings (which are held at least twice a year), each local association is represented by a delegation. When votes are taken at the plenary sessions of these meetings, each delegation, regardless of its size or the size of the institution that it represents, is entitled to a single vote.  The board of directors of the CFS-BC is known as the “Executive
Committee”. Its structure also emphasizes the role of the local associations. Each local association has one representative on the Committee. There are four additional directors elected “at large” by the delegations at the first general meeting of the year: the Chairperson, Campaigns Coordinator, Treasurer, and Representative on the National Executive. The other two directors – the Aboriginal Students’ Liaison and the Women’s Liaison Officer – are elected by “designated caucuses” at the general meeting.  The representatives of the local associations on the Executive Committee are
selected in accordance with CFS-BC bylaw 6.4:
The local Representatives shall be elected by their respective local associations, in a manner consistent with the policy and bylaws of said member local association, and ratified at the BC Component Executive Committee Meeting.
The ratification process is described in Standing Resolution No. 2 of the CFS-
Prior to being ratified by the BC Component Executive Committee, a nominated local representative must sign, swear or affirm, as per procedure set by the Executive Committee, an oath of office, promising to uphold a director’s responsibilities and obligations under the Society Act of BC. In order to ratify the nominated representative, the BC Component Executive Committee must also be in receipt of a letter from the nominee’s member local association, listing a duly-recorded motion of the association’s board of directors or general meeting filling their local representative position on the BC Component Executive Committee.
This letter must be signed by two signing officers of the member local and be received by the BC component office not less than three (3) working days prior to the beginning of the BC Executive Committee meeting at which ratification is to occur. The letter may also include conditions of the term of office of the local representative in accordance with the member local’s bylaws and procedures.
The KSA’s bylaws do not set out the manner in which its representative on the
CFS-BC Executive Committee is to be elected. Its regulations, however, provides that its Director of External Affairs is to represent it on the CFS-BC Executive Committee “unless [the KSA] Council, by Resolution, designates some other elected official to perform [this] functio[n]”. Background to the Litigation  In the background of this litigation is an unsuccessful campaign at Kwantlen
University College to have the KSA withdraw from membership in the CFSBC. Mr. Robertson took an active role in that campaign.  The bylaws of the CFS-BC allow a local association to withdraw from
membership (they use the term “defederate”) if its students decide to do so in a referendum. A referendum must be held if it is requested by a petition signed by at least 10% of the students who are members of the local association.  In August 2007, the KSA Council resolved to circulate a petition to the
students of the institution. By mid-September, the petition had many more signatures than were required to mandate a referendum, and the dates for the referendum were set for March 18-20, 2008.  In December 2007, the KSA’s Director of External Affairs resigned from her
position as KSA representative on the CFS-BC Executive Committee. Mr. Robertson, an elected member of the KSA Council, volunteered to act in her place. The KSA Council adopted a resolution designating him as its representative, and the resolution was ratified by the CFS-BC Executive Committee. Mr. Robertson commenced serving as the KSA representative on the CFS-BC in mid-December 2007.
It appears that there was considerable friction between the KSA and the CFS-
BC as the dates for the referendum approached. In March 2008, the KSA Council decided that it should recall its CFS-BC representative pending the results of the referendum. The KSA and the CFS-BC were also embroiled in litigation over the running of the referendum. Following hearings before the Supreme Court, the referendum finally took place from April 8-10, 2008. A small majority of students (56%) voted in favour of continuing KSA membership in the CFS-BC.  In the meantime, Mr. Robertson had been elected to the position of KSA
Director of External Affairs. A resolution to ratify Mr. Robertson as the KSA representative on the CFS-BC Executive Committee was defeated at the Committee’s meeting on May 11, 2008. It is apparent that the majority of the Committee considered that Mr. Robertson should be disqualified from sitting on the Executive Committee because he had campaigned in favour of defederation during the KSA referendum.  The matter of Mr. Robertson’s ratification was raised at the CFS-BC general
meeting in August 2008, but a motion to overturn the decision of the Executive Committee was defeated.  In February 2009, Mr. Robertson was re-elected by acclamation to the
position of KSA Director of External Affairs, and KSA Council passed a resolution re-appointing him as its representative to the CFS-BC. At its meeting on June 6, 2009, the CFS-BC Executive Committee again voted against ratifying Mr. Robertson as the KSA representative. While the CFS-BC offered to consider any other person who might be designated by KSA Council, KSA Council did not make any other designation.  The KSA brought a petition under the Society Act seeking, among other
remedies, an order that the CFS-BC recognize Mr. Robertson as its representative on the Executive Committee. At the time the petition was heard, in January of 2010, the KSA had been without a representative on the CFS-BC Executive Committee for 22 months.
Statutory Provisions  The Society Act sets out certain requirements that must be adhered to by all
registered societies. The requirements relevant to these proceedings are as follows:
6 (1) The bylaws of a society incorporated under this Act must contain provisions for the following: (a) the admission of members, their rights and obligations and when they cease to be in good standing; … (d) the rights of voting at general meetings, whether proxy voting is allowed, and if proxy voting is allowed, provisions for it; (e) the appointment and removal of directors and officers and their duties, powers and remuneration, if any; …. 7 (1) A voting member of a society has only one vote, and, despite any contrary provision in the bylaws, may exercise that vote on every matter without restrictions. (2) A society may have non-voting members but their number must not exceed the number of voting members. … 24 (1) The members of a society may, in accordance with the bylaws, nominate, elect or appoint directors. …
Where a society does not follow the provisions of the Act or its bylaws, the
Supreme Court has authority to intervene:
85 (1) Despite anything in this Act, if an omission, defect, error or irregularity occurs in the conduct of the affairs of a society by which (a) a breach of this Act occurs, (b) there is default in compliance with the constitution or bylaws of the society, or ... the court may (d) … make an order (i) to rectify or cause to be rectified or to negate or modify or cause to be modified the consequences in law of the omission, defect, error or irregularity, or
(ii) to validate an act, matter or thing rendered or alleged to have been rendered invalid by or as a result of the omission, defect, error or irregularity, and (e) give the ancillary or consequential directions it considers necessary.
The Proceedings in Supreme Court  Before the chambers judge, the KSA argued that the CFS-BC had
contravened its bylaws by refusing to allow Mr. Robertson to sit as a director. It contended that the ratification procedure contemplated by the CFS-BC bylaws was simply a formal procedure to ensure that the local association representatives had been properly elected, and to mark the commencement of their terms of office. It took the position that once Mr. Robertson complied with the formal requirements of the CFS-BC’s Standing Resolution No. 2, the CFS-BC Executive Committee had no choice but to ratify him as a director.  It argued, further, that any interpretation of the bylaws that allowed the
Executive Committee to reject a director elected by a local association violated s. 24 of the Society Act, because it is the members, not the directors, of a society that are entitled to elect or appoint new directors.  The CFS-BC, on the other hand, took the view that the ratification
contemplated by the bylaws was not a mere rubber-stamp, but rather an integral part of the selection of a director. The court, it said, should not lightly interfere with the internal affairs of the society, and should therefore respect the interpretation of the bylaws proffered by the CFS-BC.  The chambers judge held that Mr. Robertson had been properly elected
pursuant to the CFS-BC bylaws, and that the decision of the Executive Committee not to allow him to sit as a director contravened s. 24(1) of the Society Act.
Review of a Domestic Tribunal’s Interpretation of its Bylaws  Before turning to the interpretation CFS-BC’s bylaws, it is necessary to
consider the CFS-BC’s argument that the court should refrain from “interfering” in its internal affairs.  A consideration of the role of the courts in respect of the operations of a
voluntary organization (or “domestic tribunal” as it is known in law) begins with the oft-cited judgment of Denning L.J. (as he then was) in Lee v. Showmen’s Guild of Great Britain,  2 Q.B. 329 at 341,  1 All E.R. 1175 at 1180 (C.A):
The jurisdiction of a domestic tribunal … must be founded on a contract, express or implied. … The jurisdiction of the committee of the Showmen’s Guild is contained in a written set of rules to which all the members subscribe. This set of rules contains the contract between the members and is just as much subject to the jurisdiction of these courts as any other contract.
At Q.B. 343-4 (All E.R. 1182), he continued:
The question in this case is: to what extent will the courts examine the decisions of domestic tribunals on points of law? ... ... They will, I think, always be prepared to examine the decision to see that the tribunal have observed the law. This includes the correct interpretation of the rules. … If a domestic tribunal is given power by the rules to expel a member for misconduct, such as here for “unfair competition,” does that mean that the tribunal is the sole judge of what constitutes unfair competition? Suppose it puts an entirely wrong construction on the words “unfair competition” and finds a member guilty of it when no reasonable person could so find, has not the man a remedy? I think he has, for the simple reason that he has only agreed to the committee exercising jurisdiction according to the true interpretation of the rules, and not according to a wrong interpretation.
At Q.B. 345 (All E.R. 1182), he set out the proposition that the courts are
entitled to review all errors of law made by a domestic tribunal:
In most of the cases which come before such a domestic tribunal the task of the committee can be divided into two parts: firstly, they must construe the rules; secondly, they must apply the rules to the facts. The first is a question of law which they must answer correctly if they are to keep within their jurisdiction; the second is a question of fact which is essentially a matter for them....
In Ireland v. Victoria Real Estate Board (1987), 13 B.C.L.R. (2d) 97, Bouck J.
considered the application of the principles in Lee v. Showmen’s Guild to a society incorporated under the Society Act. He said at 102-103:
One question which arises is whether the relationship between the members and an incorporated society such as the board is converted from one based on contract to one founded on statute. In my view, the rights and obligations remain essentially contractual in nature notwithstanding incorporation. All the Society Act does is compel inclusion of provisions governing membership and the like in the bylaws and regulations, but it does not specifically define the rights to membership nor the conditions under which it may be revoked. In that sense it contrasts with professional organizations, which are governed by statute. They spell out how a person may become a member and in what instances he or she may be expelled or disciplined. By-laws of a society incorporated under the Society Act are much like the articles of association of a company. Articles of association of a company “constitute a contract between the company and the shareholders which every shareholder is entitled to insist upon being carried out”: Theatre Amusement Co. v. Stone (1914), 50 S.C.R. 32 at 37, 6 W.W.R. 1438, 16 D.L.R. 855 [Alta.].
It is true, as contended by the CFS-BC, that the courts have said that they will
not generally intervene to construe the policies of voluntary organizations, nor will they interfere with discretionary decisions taken by them. We accept the summary of the law given by Brenner J. (as he then was) in North Shore Independent School Society v. B.C. School Sports Society,  B.C.J. No. 143 at para. 37, 1999 CanLII 6539 (S.C.), as accurate:
These cases show that the courts are prepared to interfere with the decision of a domestic tribunal where it can be shown that the tribunal exceeded its jurisdiction or failed to comply with the rules of natural justice or otherwise acted in bad faith. What these cases also demonstrate is the reluctance of the courts to intervene by substituting the court’s judgment for the judgment of the tribunal on a matter of substance within the tribunal’s jurisdiction.
Section 85 of the Society Act specifically contemplates the courts making
orders to ensure that the rights of society members under the society’s bylaws are not transgressed. Where the matter brought before the court is an issue of the construction of provisions of the bylaws that define the fundamental rights of members in respect of the society’s operations, it is clear that the court has
jurisdiction to intervene, and need not defer to the bylaw interpretations espoused by the society.  In this case, what is at issue is the right of the KSA to have a representative
on the CFS-BC’s governing body. It goes to the heart of the relationship between the CFS-BC and its members. It is a question of the jurisdiction of the CFS-BC’s Executive Committee, and lies within the courts’ mandate under s. 85 of the Society Act. Accordingly, we do not agree with the CFS-BC’s assertion that deference is due to it on the interpretation of the bylaws in issue in this case. Does the Executive Committee Comprise the “Voting Members” of CFS-BC?  On the appeal, the CFS-BC relies on the same arguments that it advanced
before the chambers judge. In addition, it argues that the chambers judge’s reliance on s. 24(1) of the Society Act was in error. It says that members of the Executive Committee constitute the “voting members” of the CFS-BC, and were entitled to elect the KSA local representative. Individual members of the CFS-BC, such as the students at Kwantlen, it contends, are “non-voting members” of the society. Their role is simply to nominate candidates for consideration by the Executive Committee.  There is nothing in the CFS-BC bylaws to support this theory. It seems to be
based on confusion between the local association delegations, which are the bodies that have voting rights at plenary sessions of general meetings, and the members of the Executive Committee. While the Executive Committee does, when all of its positions are filled, have representation from each local association, it cannot in any way be said to constitute the “voting members” of the society. Its role is the usual role of a society’s board of directors.  We note, as well, that the bylaws of the CFS-BC do not specifically describe
members as “voting” or “non-voting”. The method of dividing “voting” and “nonvoting” members proposed in the CFS-BC argument would seem to violate s. 7(2) of the Act, since it would mean that the number of non-voting members of the society (individual students) would be many times the number of voting members (the members of the Executive Committee).
Interpretation of the Bylaws  How, then, should the bylaws be interpreted? Bylaw 6 is entitled “Election of
the Executive Committee” and Bylaw 6.4 clearly states that “[t]he local Representatives shall be elected by their respective local associations”. Nothing in the bylaw suggests that the local associations merely nominate representatives. Further, the Executive Committee’s power is simply to ratify the elected representative, not to appoint or approve him or her.  This language is consistent with the scheme of the bylaws. The directors
elected by the local associations are not simply members of the board of directors; they are “local Representatives” with special duties to represent their local associations. They act as liaisons between those associations and the society. It would be very strange to call these directors “local Representatives” if their appointment as directors ultimately depended on the preferences of directors from other institutions rather than on the students at their own schools.  It must also be recognized that the CFS-BC is structured as a society made
up of associations. Each local association has a single vote at general meetings, and this right is mirrored by the right of each local association to a single representative on the Executive Committee. The idea that the local association has a right to independently elect a director is in keeping with this structure.  The CFS-BC places considerable reliance on Standing Resolution No. 2
which refers to a “nominated local representative” rather than an “elected” one. We do not find this language to be persuasive. The Standing Resolution is not on the same footing as the society’s bylaws. It is not a part of the documentation that sets out the essential relationship between the members and the society. Further, nothing in Standing Resolution No. 2 suggests that the Executive Committee’s ratification of a local representative is to be more than a pro forma exercise. In particular, the Resolution does not suggest that the Executive Committee is to reach a conclusion as to the suitability or desirability of a local association’s elected representative to sit on the Executive Committee.
In short, the bylaws are to be interpreted according to the ordinary meaning of
the language that they use. Local representatives are “elected” by the students at the individual institutions. The ratification process is not integral to the selection of local representatives, but an add-on process. The chambers judge was correct to treat it as such. Section 24 of the Society Act  In finding that the scheme propounded by the CFS-BC violates s. 24, the
chambers judge emphasized that s. 24 requires directors to be nominated, elected, or appointed by the society’s members. She considered that once members had elected their representative, it was not open to the CFS-BC Executive Committee to stand in the way of the representative assuming his position.  We agree with that interpretation of s. 24. The words of s. 24(1), which
include “nominate” and “appoint” as well as “elect” suggest that there is considerable flexibility in the manner that directors are selected. Societies may, in their bylaws, set out different schemes for the selection of directors. Directors need not be elected in accordance with the voting rights of society members under s. 7. Different schemes may be in place for filling the various positions on the board of directors. Some directors may be selected by particular parts of the society’s membership, and it is not necessary that each member have a precisely equal say in the selection of directors: Lee v. Lee’s Benevolent Assoc. of Canada, 2004 BCCA 168, 42 B.L.R. (3d) 182. What is essential, however, is that directors be selected in a manner set out in the society’s bylaws, which must place the selection of directors in the hands of members of the society.  For the reasons that we have set out, we interpret the CFS-BC’s bylaws as
giving the students at each institution the right to elect their representatives to the CFS-BC Executive Committee. That method of selection of directors fully complies with the requirements of s. 24 of the Society Act. The bylaws do not provide for the Executive Committee to “nominate, elect or appoint” the local representatives. The “ratification” role of the Executive Committee was intended to be a limited one. The
Executive Committee was entitled to satisfy itself that Mr. Robertson had been duly elected and designated, that he was a member in good standing of both the KSA and the CFS-BC, and that he had agreed, by oath or affirmation, to assume the duties of a director. It was not entitled to go further and determine whether it considered him to be a worthy member of the Executive Committee.  In purporting to exercise discretion to approve or disapprove an elected
director, the Executive Committee took on a role that it did not have under either the bylaws or s. 24 of the Society Act. Conclusion  The CFS-BC’s decision to reject Mr. Robertson as a local representative of
the KSA was not a decision within the jurisdiction of the Executive Committee. In the result, the chambers judge was right to order that Mr. Robertson be recognized as a member of the Executive Committee pursuant to her powers under s. 85 of the Society Act. It is for these reasons that we dismissed the appeal. The Honourable Madam Justice Rowles The Honourable Mr. Justice Groberman The Honourable Mr. Justice Hinkson