Litigation and Legal Threats Involving Students' Unions

Acadia Students' Union (ASU) held a disaffiliation referendum in 1995, and a majority voted to stay in the CFS. The ASU then held a second referendum in 1996, and a majority voted to leave the CFS. The CFS sued the ASU in June 2002, claiming that the second referendum violated a recent amendment to the CFS bylaws which prohibited students' unions from holding successive disaffiliation referenda within a two year period. The CFS insisted that the ASU owed it membership dues for the period 1995-2002 - a huge sum of money, which the ASU could not afford. The ASU argued (1) the Acadia Students' Union Act superceded the CFS bylaws; (2) the CFS position contravened the Canadian Charter of Rights and Freedoms (this argument was later withdrawn), and (3) the specific amendment was not validly adopted at the May 1995 CFS General Meeting. The parties settled out of court in late November 2007, on undisclosed terms.

The Cariboo College Student Society (CCSS) held a referendum to disaffiliate from the Canadian Federation of Students in Oct. 17-20, 1994. The Canadian Federation of Students recognized the validity of the referendum, but claimed that according to the CFS bylaws (which the CCSS agreed to follow in a Fee Agreement that they signed in 1987), the CCSS remained a legal member of the CFS until the end of its fiscal year (June 30, 1995 in the case of CFS/CFS-Services, and August 31, 1995 in the case of CFS-BC), and owed membership fees to the CFS for that period of time. The parties settled out of court in May 1998, with a sum of $86,696.68 being paid to the CFS by the CCSS.

The Cariboo College Student Society (CCSS) held a referendum to affiliate to the Canadian Federation of Students on Feb. 7-9, 2006. Two students, unrepresented by legal counsel, tried to overturn the results of the referendum, on two grounds: (1) the referendum process violated the CCSS's bylaws, and (2) there were irregularities in the referendum itself. The Court ruled that it was the bylaws of the CFS that governed, not the CCSS, as "it is typically the organization in which membership is sought which sets the rules upon which it is prepared to grant membership" (para. 8). The Court also referenced CFS (Ontario) v. Students Federation of the University of Ottawa (1995), a similar previous case. With respect to the allegations of irregularities, the Court did not find any evidence of irregularities. The Court noted that the referendum "process [...] functioned well enough to determine that Mr. Byers had voted twice in the referendum and had been refused the opportunity to vote a third time" (para. 14), conduct that the Court found "reprehensible" (para. 15).

The Kwantlen Student Association (KSA) held a referendum to disaffiliate from the Canadian Federation of Students on September 18, 1991. The CFS refused to recognize the validity of the referendum, and sued the KSA in 1997, six years later. In the lawsuit, the CFS insisted that the KSA owed the CFS membership dues for the period 1991-1997 - a huge sum of money, which the KSA was unable to afford. By this time, the KSA had lost a significant amount of its records, and was unable to prove whether the notice of referendum delivered to the CFS was sent by registered mail, as required by CFS bylaws at the time, instead of by regular mail. In any event, the parties settled out of court in 1999, agreeing that a membership referendum would be held according to CFS bylaws. The KSA and its Executives were explicitly forbidden from campaigning in the referendum; the CFS, however, was not, and proceeded to flood the campus with staff and executives, leading to a 97.4% "victory" for the CFS. (The KSA was forbidden from disclosing the "Minutes of Settlement," which contained the onerous referendum terms, to any other person, and so this document did not become public until 2008 when the CFS made the document public voluntarily.)

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.

It is not exactly clear from the ruling what the issues at play were. However, it is clear that there was a dispute concerning the rules that would apply for a disaffiliation referendum that the Student Federation of the University of Ottawa (SFUO) was conducting. The Court ruled that CFS bylaws would apply to the disaffiliation referendum, not SFUO bylaws, and that an unlimited number of people would be allowed to campaign (including from off-campus). There would be no salary limit and no campaign finance limit. Despite this ruling (which greatly favoured the CFS' money-intensive, staff-intensive, astroturf campaign modus operandi), students voted to disaffiliate from the CFS in the subsequent referendum.

In October 2005, the University of Saskatchewan Students' Union (USSU) narrowly voted to join the CFS, with 55% in favour. The USSU Elections Board found a significant number of irregularities in the poll, and decided to annul the results of the referendum. However, the USSU Students' Council, upon the urging of Gavin Gardiner (USSU President and CFS loyalist), voted to overruled the Elections Board and accept the referendum as valid. Robin Mowat, a student and former USSU executive, sued both the USSU and the CFS in an attempt to overturn the decision of Students' Council. The CFS argued: (1) the ROC process was fair and unbiased; (2) Robin Mowat did not have standing to bring the lawsuit, because he was no longer a student; and (3) the CFS bylaws, not the USSU bylaws, governed the referendum. The Court of Queen's Bench and the Court of Appeal ruled, however, that Mowat did have standing, and that the USSU Elections Board's finding of irregularities in the conduct of the referendum was persuasive. The Courts relied on certain provisions in the Saskatchewan Non-Profit Corporations Act in reaching their conclusions.

The Simon Fraser Student Society (SFSS) delivered a valid disaffiliation petition to the Canadian Federation of Students in September 2007. A Referendum Oversight Committee (ROC) was set up, and this committee agreed to a number of provisions, including the referendum question. However, shortly before the referendum was going to begin, the CFS delivered a letter to the SFSS stating that the referendum could not go ahead, due to (1) "pre-campaigning," allegedly containing "inaccurate" and "defamatory" information, and (2) the SFSS general election taking place co-incidental to the planned date of the referendum. Nonetheless, the referendum proceeded on March 18-20, 2008, and 67% of students voted to leave the CFS. The SFSS then pre-emptively filed a lawsuit against the CFS, asking for a declaration that the referendum was valid, which the CFS denies. On August 10, 2009, the Court made a ruling that the case was too complex to be tried through the "petition" process, and instead the case would be heard as a conventional trial, should the parties prove unable to settle the case out of court.

As of October 2009, the case is still outstanding, and a trial has not been set.

The University of Prince Edward Island Student Union (UPEISU) was a founding member of the CFS. In 1996, however, a referendum was held and UPEISU members voted to disaffiliate from the national organization. However, the CFS did not recognize the validity of this referendum and the UPEISU continued to collect and remit membership fees and participate in the organization.

In 2004, the UPEISU ceased collecting and remitting fees to the CFS, and in 2005 the UPEISU Council voted to cut all ties from the CFS. On November 14, 2008, the CFS commenced a lawsuit against UPEISU, demanding membership fees owing for the 2004-2005 and 2005-2006 years. In response, UPEISU claims:

• That the 1984 affiliation referendum contravened UPEISU's own bylaws (because the results were not endorsed by a two-thirds vote of UPEISU Council) and was therefore null and void;
• That the 1996 disaffiliation referendum complied with UPEISU's own bylaws, and was therefore valid;
• That the CFS breached a commitment that it made in 2002 to remit 45% of UPEISU's membership dues back to the students' union, in recognition of the fact that the CFS operated very few services on Prince Edward Island;
• That the CFS, in fact, owes the UPEISU $10,180.80 because it failed to remit 45% of UPEISU's membership dues back to the students' union during fiscal year 2003/2004.

The CFS, in response, says that the UPEISU is "estopped" (legally prevented) from asserting any flaw in the 1984 referendum, or any validity in the 1996 referendum, because by its own actions the UPEISU "has conducted itself as though it were a member of the [CFS] and has received, on its own behalf and on behalf of its members, benefits of membership in the [CFS]." The CFS also denied the validity of the 1996 referendum and the decision by Council, nine years later, to recognize this referendum.

The matter has yet to be brought to trial.