COURT OF APPEAL FOR BRITISH COLUMBIA

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: D.G. Crane

Counsel for the Respondent: D.B. Borins

Place and Date of Hearing: Vancouver, British Columbia

February 3, 2011
Place and Date of Judgment: Vancouver, British Columbia
February 3, 2011
Place and Date of Reasons: Vancouver, British Columbia
March 18, 2011

Written Reasons of the Court

Reasons for Judgment of the Court:

[1] 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 CFS-
BC 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

[2] 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.

[3] 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.

[4] 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.

[5] 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.

[6] 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.

[7] 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.

[8] 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.

[9] The ratification process is described in Standing Resolution No. 2 of the CFS-
BC:

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.

[10] 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

[11] In the background of this litigation is an unsuccessful campaign at Kwantlen

University College to have the KSA withdraw from membership in the CFS-
BC. Mr. Robertson took an active role in that campaign.

[12] 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.

[13] 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.

[14] 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.
[15] 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.

[16] 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.

[17] 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.

[18] 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.

[19] 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

[20] 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.
…

[21] 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

[22] 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.

[23] 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.

[24] 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.

[25] 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

[26] 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.

[27] 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, [1952] 2 Q.B. 329 at 341, [1952] 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.

[28] 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.

[29] 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....
[30] 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.].

[31] 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, [1999] 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.

[32] 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.

[33] 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?

[34] 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.

[35] 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.

[36] 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 “non-
voting” 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

[37] 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.

[38] 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.

[39] 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.

[40] 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.
[41] 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

[42] 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.

[43] 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.

[44] 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.

[45] 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

[46] 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