Referenda, time to call: who is the fairest one of all?
MAR 14, 2013 | BY ISAAC THORNLEY
“From the beginning of this discussion everyone must have been thinking about legal representation,” said Rishi Maharaj, Engineering Society president, in an interview with The Varsity just over a month ago. The potential for legal disputes have informed the strategies of those seeking defederation from the UTSU in recent years, with the seemingly precedent-setting 2008 legal case in the background.
In 2010, when the Engineering Society had expressed interest in redirecting the fees paid by engineering students from the UTSU to the EngSoc, the UTSU responded with a letter outlining a “legal precedent” that stood in their way. A similar response was sent to the Trinity College Meeting in February of this year, and another to the Engineering Society later that same month.
This legal precedent is referring to a case in 2008 when the Erindale College Students’ Union (better known as the University of Toronto Mississauga Students’ Union, or UTMSU) along with the association of Erindale Part-time Undergraduate Students (EPUS), attempted to redirect fees from the Association of Part-time Undergraduate Students (APUS) to the UTMSU, and also to “withdraw the recognition of APUS as the ‘representative student committee’ (pursuant to the University of Toronto Act, 1947) for UTM part-time undergraduate students,” via referendum.
The referendum voted in favour of redirecting fees paid by part-time undergrad UTM students from APUS to UTMSU, and to shift their official representative responsibility from APUS to UTMSU. The results of the referendum were respected by both the Administration and the Governing Council, as illustrated in a Memorandum to the members of the Governing Council issued by the office of then-Interim Vice-President and Provost Cheryl Misak, dated October 2, 2008. “The administration had no reason to believe that the result of the referendum held among part-time undergraduates at UTM was not a valid articulation of students’ views on this matter.”
Before any of those changes could be made, APUS initiated legal proceedings against UTMSU, and on August 27, 2008, Ontario Supreme Court Justice Beth Allen issued an order in favour of APUS. The Provost’s Memorandum described the court’s ruling as such: “Specifically, the court determined that there were fundamental flaws in the referendum process... the process was unfair because APUS did not receive appropriate notice of the referendum.”
The UTSU has taken Justice Allen’s ruling to be a sign that they are operating on the right side of the law, as it seems to back up their primary argument: that any referendum that deals with the membership of the union must be facilitated within the union itself and must involve every one of the union’s 47 000 members, as per their by-laws. This means that a referendum held by a governing body such as a college or faculty council, cannot be recognized as legitimate by the UTSU.
Those advocating for defederation have argued that Justice Allen’s ruling had more to do with a perception of procedural incompetence on the part of UTMSU in delivering a fair and democratic referendum, and that if a referendum is facilitated properly both the Governing Council and the courts should have no problem with respecting its results. “It was a pretty unfair referendum overall. I think many of the concerns over [that case] were about the procedural fairness of the referendum. I think we have done due diligence in ensuring that UTSU is aware and involved in this process,” said Sam Greene addressing the Trinity College Meeting on February 25.
There are many questions in need of answers concerning the various legal ramifications of defederation. As we approach the end of March, and we enter the referenda period, questions of legal precedents, the immutability of union by-laws, and of the meaning of membership in student unions and the larger Canadian Federation of Students, all gain heightened importance and merit further conversation.
- Subtitle: A look into the legal precedent of defederation